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Legal Updates

H-1B Visa Limit Reached, But Employers May Still Have Options For Hiring Foreign Professionals

On April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had received a sufficient number of H-1B visa petitions during the first five business days of the application period to reach the statutory cap for fiscal year (“FY”) 2016. During this short interval, USCIS received 233,000 H-1B petitions, a significant increase from the number of petitions received in FY 2015 (approximately 170,000), and substantially more than the number of visas available annually under the statute.

Most employers will now have to wait until April 1, 2016, the start of the next fiscal year, to submit new H-1B petitions. However, alternatives may still be available for employers that wish to hire foreign nationals before then, such as petitions that are exempt from the quota.

Background

H-1B visa petitions are filed on behalf of foreign nationals whom employers wish to hire in occupations that require the application of highly specialized knowledge and completion of at least a Bachelor’s degree in the field. Examples of such occupations include engineers, physicians, teachers, and accountants.

H-1B visas are subject to an annual, statutory quota of 65,000. Also, 20,000 additional H-1B visas are set aside for foreign nationals who have earned an advanced degree from a U.S. college or university.

FY 2016 H-1B Visa Lottery

During this year’s filing period of April 1 through April 7, USCIS received 233,000 H-1B petitions – considerably more than enough to reach the congressionally mandated H-1B cap for fiscal year 2016. This number included more than 20,000 petitions for visas awarded under the advanced-degree exemption.

Thus, in accordance with federal regulations, on April 13, 2015, USCIS used a random, computer-generated lottery system to select which of the 233,000 H-1B petitions would be processed. Those petitions not selected for processing through the lottery will be rejected, and USCIS will return the accompanying filing fees. Due to the high number of petitions received under the “premium processing” service (which does not provide an advantage in the lottery but expedites the processing of a case if it is selected in the lottery), USCIS began premium processing on April 27.

Possible Alternatives For Employers

Employers must now wait until April 1, 2016, to submit new H-1B petitions that are subject to the annual quota. However, USCIS will continue to accept and process petitions that are exempt from the quota, such as petitions to allow workers who have already been approved for H-1B visas to change employers, extend their status, change the terms of a previously approved petition, or work concurrently under a second H-1B petition.

Additionally, USCIS will continue to accept and process H-1B petitions from employers that are exempt from the annual quota. Such employers include U.S. colleges and universities and certain non-profit institutions affiliated with them, as well as certain non-profit and governmental research organizations.

Recommendations For Employers

In light of USCIS’s announcement that the statutory H-1B quota for FY 2016 has been reached, we recommend that employers take the following measures:

  • Employers whose H-1B petitions are not selected through the lottery should consider, in consultation with experienced immigration counsel, whether the foreign national workers may be eligible for any other types of employment-based visas or employment authorization.
  • Non-profit employers should examine their relationships, if any, with U.S. colleges and universities to consider whether their employees might qualify for H-1B visas that are exempt from the statutory quota.
  • Also, private employers whose beneficiary workers would be physically placed at a college or university should examine whether those workers would qualify for quota-exempt H-1B visas.
  • Employers that plan to apply for H-1B visas in FY 2017 should start the process early to ensure that their visa petitions are ready to be filed with USCIS on April 1, 2016.
  • Finally, employers should closely monitor the news for further developments in immigration law, including any potential changes to the H-1B program.

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Please contact us if you have any questions regarding the H-1B program or any other immigration issue. The Firm regularly assists employers with preparing and processing employment-based visa petitions, and we would welcome the opportunity to assist you.