A recent Freedom of Information Act (FOIA) request by attorney David Rudman of Chicago shows that USCIS has been seriously underutilizing annual H-1B numbers by about 15%. That is, USCIS has not been issuing enough H-1B numbers to meet the annual H-1B quota over the last 5 years. During this time, USCIS appears to have issued 45,000 fewer H-1B visas than it should have. It is likely that it has done the same this year as well.
The H-1B is the most common US work visa available. However, H-1B visas are subject to an annual quota, and that annual H-1B cap is frequently filled on or shortly after the first date of H-1B filing, which is 6 months prior to the annual H-1B quota period, or April 1 of each year. Each fiscal year on October 1, the beginning of the US government’s fiscal year, H-1B visas become available. Employers have the best (and often only) opportunity to obtain an H-1B number if they file H-1B petitions on or as close to that first possible filing date each year (April 1) for employment start dates of October 1.
This fiscal year (FY-2013), USCIS notified the public that the annual H-1B cap had been filled in June 2012 although FY-2013 does not begin until October 1, 2012. No more cap-subject H-1B visas will be available to US employers again until October 1, 2013.
Due to the annual H-1B cap, US employers cannot bring in the highly skilled foreign workers they need to grow or maintain their businesses, and they must seek alternatives, although often no viable alternative exists.
Viable alternatives to an H-1B visa may include:
US employers who don’t file an H-1B petition before the annual H-1B cap has been filled, and who are unable to find an alternative visa category for the highly skilled employees they need, must wait until the annual H-1B cap opens up each year and hope that their projects remain viable until they can adequately staff them–often a year or more into the future. Most businesses, particularly in the volatile global economic climate we have experienced for more than a decade, don’t have the luxury of planning so far into the future and/or waiting for the H1-B cap to open each year, and they lose talent and opportunities that present themselves in the market–an occurrence that hurts not just the prospective H-1B employer and foreign employee, but US workers as well.
Stay tuned for more info on what, if any, action USCIS will take on this issue (such as providing more H-1B numbers for this fiscal year, FY-2013).