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H-1B Cap: Too Few H-1Bs Issued Last 5 Years

Pile of documents 100923010A 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 Visa and the Annual H-1B Cap

The H-1B is the most common US work visa available for foreign professionals to come to the US for employment. 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. The H-1B cap is refreshed at the beginning of the US federal government’s fiscal year, which begins October 1 and ends September 30. Employers have the best shot at obtaining 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 doesn’t even begin until October 1, 2012. No more cap-subject H-1B visas will be available to US employers again until October 1, 2013 (we’ve had a number of clients ask if we were SURE about the year H-1B’s would be available again because they cannot believe employers will be locked out of the H-1B Program for such a long time).

Due to the annual H-1B cap, US employers now cannot bring in the highly skilled foreign workers they need to grow or maintain their businesses, and they must seek alternatives–although oftentimes no viable alternative exists. So projects languish, on hold until US companies can find qualified employees to staff them, and business cannot proceed as it could if the annual H-1B cap adequately addressed the actual needs of US enterprise and the pace of the US market.

Alternatives to the H-1B Visa

Viable alternatives to an H-1B visa may include:

  • O-1 Extraordinary Ability visa: if the prospective employee is lucky enough to qualify. The O-1 has extremely demanding criteria by design, and is available only for those who can show they can meet these criteria.
  • L-1 Intracompany Transfer: only viable if the prospective employee has worked full-time and continuously for a qualifying overseas employer in a full-time executive, managerial or specialized knowledge capacity for at least one year of the last 3 years.
  • E-1 Trader or E-2 Investor Visa: possible only if (1) the US employer is majority owned by a national(s) of the same country as the prospective employee; (2) the employer and employee’s common country of nationality has a E treaty with the United States (none of the BRIC countries do–Brazil, Russia, India nor China); and (3) if the US employer can demonstrate a substantial investment in the US enterprise or substantial trade between the US and the country of nationality; among other qualifying factors.
  • E-3: only available to Australian nationals who meet certain education and experience requirements for (for the most part, Australians who don’t have at least a bachelor’s degree or equivalent won’t qualify), and if the job offered requires at least a bachelor’s degree or equivalent.
  • TN (Trade/NAFTA): possible only if the prospective employee is Canadian or Mexican, the job appears on the TN Skills List, and the employee has the requisite education and experience.
  • H-1B1: possible only if the prospective employee is a national of Chile or Singapore, and if s/he possesses the requisite education and experience.
  • Marriage to US Citizen: in rare instances where the prospective employee is married to a US citizen, s/he may be able to obtain a green card within a year of filing (sometimes sooner)–which may be faster than trying to obtain an H-1B visa once the annual H-1B cap has been reached.

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).

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