Posts Tagged ‘H-1B Cap’

The USCIS H-1B Prediction, Conspiracy Theories, and the H-1B Lottery

April 14th, 2013
posted by at 6:48 pm

By Pam Prather

Calling Mulder and Scully….

Two weeks prior to the initial filing date for FY2014 HIBs, the USCIS published their prediction that the cap would be reached in 5 days.  This turned an otherwise normal H-1B filing ‘season’ in a down economy into a mad rush for employers and immigration practitioners.

Hmmmm…so why did the USCIS issue this memo?

There are several interesting theories out there as to why the federal agency would take this unprecedented step. Prior to this year, the USCIS only reported on ‘reaching the cap’ AFTER they started to receive applications – in other words, they used real data. Why would they pull these numbers out of the air for the first time ever?  Was it to raise awareness of immigration issues being addressed by Congress as we speak? Was it to inflate our perception of a job market turnaround?  Could it simply have been a way to avoid a protracted application period, allowing USCIS staff to settle in and get down to the real work immediately?

Many agree that without the announcement regarding the predicted high demand, the 2014 quota would likely not have been reached for several weeks – if not longer. Last year it took two months, 2011 took seven, and in 2010 the quota was not reached for nearly ten months. Is it a coincidence that – correctly or not – H1B demand is associated with our overall economic health?

I guess the question we ask ourselves is, who benefits from this year’s USCIS H-1B prediction?

Exactly. :) Clear as mud.

On a related note, how fair is it that they will use a lottery system for all the applications reached in the first five days? I don’t know about you, but we worked extremely hard for months to ensure that our clients’ petitions were received by USICS on April 1.  Unfortunately, under USCIS policy an H-1B petition received on April 4th or 5th has the same chance of being picked in the ‘lottery’ as a case received on April 1st.   Our politicians often talk about ‘fairness,’ but how fair is this?

Regardless, this year’s H-1B cap is over in 5 days.  Under current law, an employer cannot file a new H-1B application until next year.  Yet our employers need the flexibility to select qualified professional workers from a global pool right now in order to compete.  I wonder if Comprehensive Immigration Reform will cover this…..

Stay tuned!

No More H-1Bs For Fiscal Year 2012; Now What?

January 20th, 2012
posted by at 3:23 pm

By Pam Prather

The H-1B quota for 2012 (10/1/2011 – 9/30/2012) was met on November 22, 2011.  Although most immigration practitioners knew it was coming, it was still a disappointment to hear this news – particularly because it was given the day AFTER it happened. So, as in years past, we are again messengers of a frustrating policy to U.S. employers eager to issue job offers to foreign nationals.

Fortunately, there are some exemptions to the cap.  These should be kept in mind when strategizing a case, as it means an employer could file even after the quota has been met:

  • Extension applications for persons currently in H-1B status (and, in certain circumstances, for persons who were previously in H-1B status and seek to regain it)
  • New Employer applications for H-1B holders transferring from one employer to another
  • Applications by employers who are institutions of higher education, nonprofit research organizations, or governmental research organizations

If the cap has been met, and a case is not eligible for an exemption, what’s left to do?

In certain circumstances, there are other – some perhaps lesser known – employment visas that should be carefully explored with the employer and the employee:

  • L-1 intracompany transferees, for employees who worked for a related corporate entity abroad
  • TN (under NAFTA) for Canadians and Mexicans
  • E-3 for Australians
  • E-1 and E-2 for treaty-investor or treaty-traders (from certain countries)
  • F-1 for students of higher education who qualify for limited work authorization (and possible STEM OPT extensions)
  • O-1 for persons of extraordinary ability

In addition, there may be work authorization available to employees at certain stages of the “Green Card” process.

Federal law caps the number of new H-1Bs at 65,000 per year. Citizens of Singapore and Chile get 6,800 of those under specific trade agreements, so general availability is actually 58,200. There are an additional 20,000 for those who have achieved a U.S. Master’s (or higher) degree, a ‘gift’ bestowed by Congress in December 2004.

With the American economy slowing down as it has, last year’s quota remained open for 10 months, and this year’s remained open for almost 8 months. In past years, the H-1B quota was exhausted in one day!

Not having this vital program available to employers year-round makes obvious the point that the arbitrary quota is not sufficient to meet U.S. workforce needs.  Congress and the President should increase the quota, or in the alternative, eliminate it altogether.

Although the H-1B is by far the most commonly used temporary, nonimmigrant work visa, there are some other options to consider.  As with all immigration law, however, they are complex.  Remember to consult with a qualified immigration attorney to help you through the labyrinth of each possibility, and to ensure compliance with federal law.