The H-1B visa quota for USCIS Fiscal Year 2015 opens on April 1, 2014 for a work start date of October 1, 2014.  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 the quota was oversubscribed in the first few days, and applications went into a lottery system.  It’s highly likely this will be repeated in April 2014, so petitions will need to 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.  Individuals filing for H-1B amendments, extensions or transfers are exempt.  Once you are approved for H-1B, you are eligible to work in H-1B status for 6 years (3+3) and are 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 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 their 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, but before the requested start date, 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 see:  http://www.uscis.gov/archive/archive-news/questions-and-answers-extension-optional-practical-training-program-qualified-students

For Stem degree list, see: http://www.ice.gov/sevis/stemlist.htm

Dual Intent

Unlike some other visa categories (J-1 and E visas), the H-1B is a dual intent visa, meaning that although it’s a non-immigrant (temporary) visa, the holder may apply for lawful permanent residence (Greencard) in the future.  This issue is covered elsewhere – see: https://obrienandassociates.com/u-s-immigration-resources/

Alternatives

It may be necessary 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 and E-1/E-2 treaty trader/investor visas are excellent categories where those options exist, see: https://obrienandassociates.com/u-s-immigration-resources/

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.

Conclusion

The H-1B visa quota system sends all involved into a spin in the lead up to April 1 every year.  It is a big investment with no certainty of return but if you’re not in, you can’t win; inevitably, many are frustrated when they don’t make the cut.   The U.S. immigration reform bill was passed by the Senate in July 2013 and although currently stalled, it is generally accepted that some measure of reform is likely for business visas.  The Senate bill 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 will receive a quota of 10,500 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.

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