Visa News

It’s That Time of the Year Again—the H-1B “CAP” Looms Large

2016/02/02

As many of you know, the H-1B category is one the most popular temporary, non-immigrant work statuses available to foreign nationals. The catch: The quota severely limits how many people can actually obtain H-1B status (see below). Outside of the mandated “cap,” the requirements of the H-1B are fairly straightforward–an employer may file an H-1B petition to sponsor a foreign worker if the position offered requires, at a minimum, a bachelor’s degree or its equivalent in a given, specific field, and the foreign worker possesses said bachelor’s degree or equivalent.

On Friday, April 1 2016, the USCIS will begin accepting H-1B petitions for cap-subject filings for Fiscal Year 2017. Beneficiaries of successful H-1B petitions will be eligible to start working as H-1B employees on October 1, 2016. There are currently 58,200 H-1B s available per year in the bachelor’s degree quota for non-Chilean and non-Singaporean H-1Bs. In addition, there are 20,000 H-1B s available per year in the U.S. master’s degree quota.

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Assuming that the demand for H-1B workers remains as high as it has been for the past few years, the cap will likely be hit within the first five business days of April. Last year, the cap was hit on April 7th with a total of 233,000 petitions filed during that period. After the H-1B cap is hit, the USCIS uses a computer-generated random selection process, or lottery, to select enough petitions to meet the 58,200 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will thereafter reject and return all unselected petitions with their filing fees to the attorney of record. If unrepresented, the petitions will be returned to the U.S. employer.

Many employers are now hesitant to file H-1B petitions given the likelihood that their filings will be subject to the lottery process. The fact remains that the H-1B category is the only viable option for many foreign workers, especially recent college graduates. Employers need to consider all their options and start preparing as soon as possible if they plan to file an H-1B for Fiscal Year 2017.

Economic relevance: One issue that has affected H-1B availability in the past concerns the state of the U.S. and global economies. Let’s compare the state of H-1B cap filing cases for FY 2009 and FY 2010. Review of the data indicate extreme differences between those two filing periods, separated by only one year.

On April 08, 2008, the USCIS announced that as of April 07, 2008, enough H-1B cases had been submitted to fulfill both the bachelor’s degree and master’s degree caps. However, in 2009, the USCIS announced: “USCIS is hereby notifying the public that Dec. 21, 2009 is the ‘final receipt date’ for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.” In other words, H-1B petitions received by the USCIS on or before December 20, 2009, made it into the FY 2010 numbers. Only cases received on December 21, 2009 were subject to the lottery . . . .

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This year is shaping up to be an interesting one so far, financially speaking. With the world entering largely uncharted economic territory according to a variety of metrics, it is difficult to predict how the H-1B numbers will move this time around. Either way, these are important issues to consider for all potential H-1B employers and employees.

Provided by

Olson & Ishizuka Law Offices, P.C.

In business since 2003, they have been providing clients’ immigration experiences in the United States.
Olson & Ishizuka Law Offices remains committed to efficiently and effectively advising their client base on how best to navigate the complex system of laws, regulations, memos, and decisions that comprise America’s legal immigration system.