The H-1B visa quota for USCIS Fiscal Year 2016 opens on April 1, 2015, for a work start date of October 1, 2015. H-1B visas are available to foreign graduates (bachelor’s degree or higher) with a U.S. professional job offer, i.e. one which requires a degree. The applicant and the position must therefore be professional and the degree must be relevant to the employment. The applicant’s credentials will need to be evaluated to show equivalency to a 4-year U.S. degree. In the absence of a degree, relevant work experience may be taken into account (3 years’ relevant work experience = 1 year of college). This visa category is heavily regulated, and the employer is closely scrutinised on such issues as prevailing wage and what USCIS refers to as “job shopping” or the contracting out of labor.
Quota
Historically the H-1B visa annual quota (with the exception of the 4 years immediately following 2008) has been woefully short of demand. The following figures represent U.S. professional visas available worldwide per year:
58,200 for Bachelor’s degree holders
6,800 for H-1B1 visas for nationals of Chile and Singapore
20,000 for US Master’s degree holders
After the global recession began in 2008 (and outsourcing increased, especially in technology),the demand for H-1B visas declined, and the H-1B quota lasted 8 and 9 months respectively in 2009 and 2010, 7 months in 2011, and only 2 months in 2012. Perhaps H-1B visa uptake should be viewed as an economic indicator, as in 2013 and 2014 the quota was oversubscribed in the first few days, and applications went into a lottery system. All indications are that this will be repeated in April 2015, so petitions should be filed no later than April 1 to have a chance at acceptance, even for lottery.
Exemptions From Quota
Not every individual or employer is subject to the H-1B quota or cap. Individuals filing for H-1B amendments, extensions or transfers are exempt. Once approved for H-1B, one is eligible to work in H-1B status for 6 years (3 years initially +3 extension) and is not subject to the cap during this time.
The cap does not apply to institutions of higher education, non-profit research organizations, and government research organizations. These qualified institutions and their affiliates are exempt from the H-1B cap and can sponsor for an H-1B visa any time of the year.
Students
Upon graduating, international students on F-1 visas are given 1 year of work experience known as ‘optional practical training’ (OPT) or 12 months internship for J-1 graduate visas. If a student and his or her employer intend to continue the employment by applying for H-1B, they should plan to petition as soon as possible after the OPT or internship begins to eliminate or minimise the potential gap between the end of training and commencing work on H-1B visa.
Cap Gap
An F-1 student whose status expires after the filing of an H1B petition requesting a change of status effective October 1, receives an automatic extension of his/her F-1 status. This extension is valid until September 30 if the H-1B petition is accepted and approved. The official start of the new USCIS fiscal year is October 1st each year and in order to benefit from the application of the cap gap, the petition must request a start date of October 1.
If the student beneficiary is authorized for employment (OPT), as of the date of the filing of the H-1B case, his/her employment authorization will also be automatically extended through the entire cap-gap period.
During the cap-gap period, the student beneficiary may also apply for the 17-month STEM (Science, Technology, Engineering and Mathematics) extension, if otherwise eligible. However, if the petition was withdrawn, revoked, or denied, and the student has entered the 60-day grace period, he or she is no longer eligible to make an application for a STEM extension.
For USCIS Q&A on this topic, please read this article on U.S. Citizenship and Immigration services on the Department of Homeland Security website.
For Stem degree list, see: http://www.ice.gov/sevis/
Dual Intent
Unlike some other visa categories (e.g., J-1 and E visas), the H-1B is a dual intent visa, meaning that although it requires temporary intent, it’s possible to apply for lawful permanent residence (green card) while in H-1B status. This topic is covered elsewhere – see:http://obrienandassociates.
Alternatives
Where possible, it’s best to examine alternatives to the H-1B visa because of the quota system, timing issues or simple lack of eligibility. L-1 intra-company transfer visas, E-1/E-2 treaty trader/investor visas and the J-1 training visa are excellent categories for suitable cases. See:http://obrienandassociates.
TN visas are available to Canadian and Mexican professionals under NAFTA, while E-3 visas allow Australian citizens to work as professionals in the U.S.
US Immigration Reform and The H-1B Visa
The U.S. Immigration Reform Bill which was passed by the Senate in July 2013 and subsequently stalled in the House of Representatives, proposes almost doubling the H-1B bachelor’s degree quota to 110,000 and increasing the number available to master’s degree holders (but restricted to STEM graduates only) to 25,000. There is also a proposal to broaden the E-3 visa category (currently restricted to Australian degree holders) to include non-graduates as well as graduates; Ireland would receive a quota of 10,500 professional (E-3) visas per year, renewable every 2 years. Importantly, spouses of H-1B holders (H-4 visas) would be eligible to work; currently H-4 spouses (unlike L and E spouses) are not eligible for work authorization.
In November, President Obama announced he would take executive actions on immigration reform. While most of the media coverage has focussed on provisions for certain undocumented, there are also positives for business, including work authorization for certain (sadly not all) spouses of H-1B workers and pre-registration for green card holders which may make green card a viable alternative to H-1B in some cases. For more information on President Obama’s executive actions for business, see http://obrienandassociates.
In January 2015, Bi-partisan Senate groups introduced two new bills: the Immigration Innovation Act, which would increase H-1B visas to 115,000 and allow spouses of H1B visa holders to work; and the Startup Act (this act has also been introduced in the past) which would create a new visa category for foreign entrepreneurs. If either of these proposals becomes law, it will be a significant turning point for business immigration reform, albeit falling far short of the Senate bill’s proposals. It will be very good news for the H-1B visa category in particular.
Conclusion
The H-1B visa quota system sends everyone involved into a spin in the lead up to April 1 every year, and April 2015 will be no different (though perhaps by April 2016, the picture will be much improved). Although the current quota and the way it’s administered leaves so much to be desired, it provides the potential opportunity of a work visa for professionals who may not have other U.S. visa options. If you’re not in, you can’t win.
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Many thanks,
Deirdre
