Tag Archives: employment visa

H-1B Filing Alert

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H-1B FY 2017 Filing Alert

H1b 2016

The time for filing H-1B lottery subject applications is approaching. The first five weekdays of April is when USCIS is accepting H-1B applications for the lottery. It will play the lottery shortly after that and begin issuing receipt notices and rejections for the lottery. There is a limited cap of 65,000 plus an addition 20,000 reserved for US Master’s.

If you are considering filing an H-1B application for a foreign national in a specialty occupation (a requirement of the H-1B visa), now is the time to act. An H-1B petition can be cap-exempt, meaning not subject to the lottery, if there are certain approved affiliations or if the employee in question has already been accepted under the cap. Otherwise, the petition is subject to the cap and must be filed in two weeks. The beneficiaries of accepted and approved H-1B applications will be able to work in H-1B status on October 1, 2016, the first day of the fiscal year.

H-1B Visa Article

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H-1B Visa from Houston

H-1B VisaThe Houston Chronicle published an article on H-1B visas, angling with the usual focus on Silicon Valley but also adding a focus on Houston. It notes that Houston is a city with many businesses relying on the H-1B visa, which allows skilled foreign national workers to work in the United States with a sponsoring employer for a maximum of two 3 year periods.

The article’s focus (outside the geographic locations) is on the number available. It recites the history of the H-1B visa: Congress set a cap of 65,000 in 1990 and added 20,000 visas with a specific Master’s and above category in the United States. There is an unfortunate conflation with the H-1B visa as the sole work visa program, as there are plenty of other employment-based visas in the United States: E, L, O, P. Regardless, the article’s concentration on the H-1B visa situation highlights the geographic and wider country limits on the visa and how certain employers are lobbying for more availability. The cap has not always remained stagnant. There was a period of increasing availability that ended in 2004. (the article omits this).

The practical implications of the low supply of H-1B visas versus the high demand is that applicants are subject to a lottery. Rather than being adjudicated on the merits, the application must first be selected to be adjudicated. Last year, there were 250,000 applications vying for adjudication. All H-1B visa applications must be submitted within a specific timeframe and the visa, if approved, begins on October 1. There are exceptions, as there are certain H-1B visas that are “cap-exempt.”

Record Number of H-1Bs

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And We Broke a Record

USCIS announced that it has received a record number of H-1B applications for Fiscal Year 2016. Over 233,000 applications were filed by employers petitioning for prospective foreign national employees. Some of those prospective employees are actually already in the employ of their companies, but they need the H-1B to continue their work authorization. There is a 65,000 cap on H-1B visas, plus an additional 20,000 visas that are reserved for individuals with Master’s degrees from a United States institution of higher learning. For example, an engineer with a Master’s degree from Carnegie Mellon University would be placed in the Master’s lottery first, whereas an engineer with a Bachelor’s degree from the University of Pittsburgh would be subject to the 65,000 cap.

USCIS conducted the lottery yesterday. This means that nearly 150,000 visa applicants will be rejected without consideration.

The H-1B visa is a critical aspect of our immigration employment system. To obtain a visa, the occupation in question must be a specialty occupation, and it must require a college degree or the equivalent thereof to perform the duties of the occupation. It also requires an employer to be the petitioner and pay fees that the employer would not have to pay for an American worker. They are highly sought out because they afford up to six years of status, as well as an opportunity for a Green Card.

H-1B applications are filed in the first week of April in anticipation of the beginning of the Fiscal Year in October. Employers and prospective H-1B employees nervously wait for whether they are selected in the lottery for about a month, as notices will begin going out in the middle of May.

There is a 36% of being selected for the lottery. Technology and immigration groups clamor year after year for improvements to the H-1B visa, especially in terms of raising the cap. Their champions in Congress push for bills like Innovation Squared, but they rarely make it out of committee. H-1B opposition emanates from the fear that foreign nationals are snatching American jobs from American citizens and permanent residents. The rebuttal often cited by H-1B proponents is that the economy is dynamic and H-1B jobs are “job-creating.”

USCIS will continue to accept H-1B applications for the following purposes:

  • Extend the amount of time for an H-1B worker (6 years is generally max, except for I-140 filed or pending)
  • Change the terms of employment for current H-1B workers (transferring areas)
  • Allows current H-1B workers to change employers
  • Allows current H-1B workers to work concurrently in a second H-1B position
  • Statutorily cap-exempt employers (universities, university-affiliated)

H-1B Cap Season Ends

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H-1B Season Is Over, Kind Of:

       If applications were filed like they were last year, Vermont and California Service Centers have received around 200,000 H-1B visa applications this past week. Because only 65,000 (+20,000 for U.S. Master’s Degrees) visas are available, the applications are spun in a lottery and the ones that win the “lottery” are processed. The others are returned.

The reason that April 1-7 is the period applications are sent is because they must be filed within 6 months of the start of the fiscal year, which is October 1. October 1 cannot be requested with a February filing. All of the visa spots are taken if filed in July (in most years). A congressional bill has been posed twice to expand H-1B visas by need, but it has been an idea more than a legislative possibility. The number of H-1B visas available used to fluctuate and expand, but it has been consistently on the lower end for nearly a decade.

H-1B season does not have to be over for you. If you hold a Bachelor’s degree (or higher) in a specialty occupation, there are still opportunities for the H-1B visa. Some employers are cap-exempt, meaning that their applications for H-1B visas are not subject to the 65,000 or 20,000 limit. These employers are either universities or have an affiliation with universities such that the majority of work is furthering the purpose of that institution. That exception does not apply, for example, to a construction company that is building on a university. The scholastic purpose needs to be more apparent.

If you hold an H-1B visa, transfers and extensions can be executed without worrying about the cap. Once an individual has made it under the cap, she is able to transfer and request an extension without being subject to the cap. The H-1B can be utilized for six years; it can then be restarted by going overseas for a year continuously.

There are options outside the H-1B for employment visas, but judging by the competition for a limited number of slots, it is the most coveted. It also has the advantage of “dual intent.” Even though it is a non-immigrant visa, a visa holder may apply for Permanent Residence with the proper sponsorship.

UPDATE: President Leslie Holman of the American Immigration Lawyers Association responded to the news of a lottery, bemoaning the insufficient number of visas available.

L-1B Visa News

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L-1B Visa Denials

 

The National Foundation of American Policy reported last week that the denial rate for L-1B petitions has reached a historic high of 35% for Fiscal Year 2014. This is an increase from 30% in FY 2012 and 34% in Fiscal Year 2013. While those numbers seem consistent, 35% is a stark contrast from the 6% denial rate from FY 2006.

 

The L-1B visa is an opportunity for multinational companies to transfer high-skilled employees from their overseas locations to the United States. There are certain requirements that must be met. The employee (1) must have been employed for a qualifying organization abroad for one continuous year in the past three years and (2) be seeking to perform a specialized knowledge position with the qualifying organization in the United States. The employer (1) must have the requisite relationship with the foreign company and (2) be engaged in or it must engage in business as a US employer with another country through the qualifying organization. The visa is an important tool for companies that are seeking US locations and would like to fortify their US operations with institutional knowledge.

 

The report contains some shocking statistics. 56% of employees transferring from India were denied between 2012-2014, more than four times the denial rate of 13% for employees from other countries in that time period. Nationals from other countries were also above that 13% rate, but Canadians only had a 4% denial. The increase in denials is especially consternating because there has not been a change in the L-1B regulations.

 

The White House announced that a guidance memo on L-1B visas will be released this week. L-1B guidance has been mentioned for years and was part of the executive actions announced in November. The guidance memo was released on March 24, 2015.

 

The Law Offices of Andrew Wood is committed to facilitating job-creating companies and employers who are growing the US economy. L-1 visas are an important aspect of that. In a global economy, we recognize that companies need employment visas to compete globally. Employment-based green cards are notoriously difficult, making non-immigrant visas the practical option. Given that L-1 and H-1B non-immigrant visas are the two practical means that companies have for retaining international nonimmigrant employees, guidance will be timely.