United States Citizenship and Immigration Services (USCIS) has announced that once again an H-1B visa lottery must be held to determine which H-1B cap-subject petitions filed for prospective H-1B workers will make it to the adjudication phase. USCIS confirms that on the first day it can count petitions, they received more than enough to reach the 85,000 maximum H-1B visas that are available in fiscal year 2015. This number is comprised of 65,000 “regular” cap visas and an additional 20,000 “master cap” visas set aside for foreign nationals who have earned a U.S. master’s degree or higher.
Because of the surge of petitions that were filed, a lottery will be held to determine which petitions received in the five-day filing period, the minimum time USCIS can accept petitions, will actually be considered. All others will be rejected without review. Lotteries have been held in previous years including fiscal years 2008, 2009 and 2014.
AILA President Doug Stump offered the following comments (AILA InfoNet Doc. No. 14040742): “There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year,” Stump noted. “I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than 10 years is absolutely the last thing we should be doing.
“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.
“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century,” Stump concluded.
While many employers find their ability to bring new workers to the U.S. under the H-1B visa category is limited, certain employers are not subject to the numeric cap and can bring as many workers to the U.S. in this category as they can qualify for and choose to bring. You can read about that here: Not All H-1B Petitions Are Subject to the Annual Numeric Cap. Certain individuals who already hold H-1B status may also change employers at almost any time during their stay and would not need to be counted again.
If you are an employer who wishes to employ a foreign worker in H-1B status, don’t assume that it is no longer possible. Schedule a consultation with one of our H-1B attorneys to determine whether or not your organization is subject to the numeric cap and whether or not the foreign national would qualify under a different category.