USCIS announced this week that it anticipates that the annual quota or “cap” of H-1B Visa Petitions may be exhausted within one week of the opening date of April 1, 2013. If the USCIS receives as many H-1B Petitions as it expects (in excess of the 65,000 “regular” cap and 20,000 “Master’s cap” visa petitions within that time frame) USCIS will be required to conduct a lottery to select the petitions to be adjudicated. Such a lottery has not been used since 2008, prior to the economic meltdown that brought high unemployment and lower demand for H-1B visas over the past five years, which has made the H-1B one of the most talked about visa for working professionals in all of employment-based immigration law.
With the US economy steadily improving over the past several months, US employers are hiring again. Last weeks Federal Jobs Report showed that US employers were again hiring at a vigorous pace, with 236,000 new jobs having been created during the month of February 2014. What this means for H-1B Visa applicants is that employers will begin filing H-1B petitions at a fast and furious clip as soon as April 1, 2014 rolls around in just a few weeks.
The H-1B visa quota (H-1B “cap”) for FY 2014 opens up on April 1, 2013, making 65,000 new H-1B visa numbers available for new employment beginning on October 1, 2013 as well as an additional 20,000 H-1Bs for persons who have attained a Master’s Degree or higher in the US under the so-called “Master’s Cap.” Since the H-1B cap has been reached over the past several years well before the next fiscal year commenced, thousands of applicants are already preparing their H-1B Petitions to be filed on or soon after April 1, 2013, which is the earliest date on which an employer may submit a new petition. Absent some extraordinary Congressional action, the favorable jobs outlook will ensure that H-1B visas are used up well before the fiscal year even begins on October 1, 2013.
Since the sunset of the provisions of the American Competitiveness in the 21st Century Act (AC-21) in 2002, which had raised the annual number of H-1B visas to 195,000 for a period of three years, the “H-1B cap” has been reached each year leaving thousands of professional workers and employers seeking to hire them out of business. The annual cap of 65,000 is grossly inadequate to accommodate businesses, as has been made obvious over the past several years, with last year’s cap reached by July 2012, only three months into the fiscal year, even while the US economy was still barely clawing its way out of a deep recession.
Employers seeking to hire an H-1B professional must establish that the prospective employee: (1) has a bachelor’s degree; (2) seeks to come to the United States to perform services in a position requiring a bachelor’s degree or higher for entry into the position; and that (3) the degree is directly related to the nonimmigrant’s field of endeavor. The U.S. employer or sponsor must demonstrate a need for a worker and attest that insufficient domestic labor is available to fill the need. Of course, the U.S. employer must also establish his ability to pay the “prevailing wage” for the position.
If the intended worker is overseas, he may obtain an H-1B visa from the U.S. Embassy upon USCIS approval of a Petition in the U.S. A nonimmigrant visitor in the United States, for instance on a B-2 visa, may apply for “change of status” from visitor to H-1B professional worker. The new status will be indicated on the person’s I-94, but is not a travel document. In order to travel and reenter the United States in H-1B status, a visa must be obtained at a U.S. Embassy or consulate abroad.
The number and types of occupations that will qualify people for classification as H-1B professional workers are constantly expanding. With the development of so many new highly specialized occupations in the high-tech industries, more and more H-1Bs are necessary to fill the demand, and to maintain the status quo for more traditional occupations such as accountants and engineers.
Although certain categories of workers are exempt from the H-1B cap, there is no doubt that the 65,000 H-1B visas available for most jobs in “specialty occupations” and the additional 20,000 H-1B visas available under the “Master’s Cap,” USCIS expects that all H-1B visas will likely be used up within 1-2 weeks of April 1, 2014. With that in mind, employers desiring to hire professional workers under the H-1B category would do well to file their Petitions immediately, or risk being shut-out until April 1, 2014 when the quota reopens for FY 2015.