Universities Get Creative: H-1B Visas After the Lottery
H-1B visas are normally subject to a lottery. Specialized jobs that require a Bachelor’s degree generally qualify for the H-1B visa. However, with a demand thrice the amount of the supply of 85,000, nearly 2/3rds of H-1B visa applicants are left on the sidelines without a visa and a lost job opportunity. For many individuals, the H-1B visa is the best and sometimes, only option. There are more than 85,000 visas available in the category. The reason for that is cap-exempt H-1B visas.
Certain institutions are exempt from the lottery, meaning that they can apply for the H-1B visa at any time of the year for a beneficiary. Instead of filing on April 1 for an October 1 start date and subjecting themselves to the randomness of a lottery, they are able to procure H-1B visas if their applications meet the standards for an H-1B visa.
Babson is among 6 US universities that is endeavoring to keep their talent in the United States by petitioning for beneficiaries as entrepreneurs through university-created residence programs. Programs of the sort are popular at universities throughout the United States. Using the program to connect the cap-exempt H-1B visa for foreign graduates is innovative. It is being called a “legal loophole,” but the paucity of visas totally incommensurate with supply has created an atmosphere where employers and universities will invent creative ways to obtain H-1B visas for their desired individuals.
New H-1B Bill Seeks Fundamental Changes to the Program
A new bill – The High Skilled Integrity and Fairness Act of 2015 – is poised to be introduced by two Californian legislators: Zoe Lofgren (D) and Darrell Issa (R). The bill proposes multiple changes to the H-1B visa and employment-based immigration, particularly to the H-1B lottery. The highlights of the bill are listed below:
- It will fundamentally alter the way the lottery works. The lottery process is shrouded in mystery, hence a lawsuit to extract information. Theoretically, all petitions are equally treated. This bill proposes giving employers who pay their prospective H-1B employees the most over the prevailing wage the best chance at success in the lottery. For example, an IT company that is willing to pay its Software Developer 200% of the prevailing wage will have an advantage over the IT company that is going to pay its Software Developer a dollar above the prevailing wage.
- Wages would not solely determine a petition’s chance at success in the new lottery. Also taken into consideration would be companies that hire US workers mainly. H-1B dependent employers would be prejudiced in favor of those companies.
- 20% of the lottery H-1B visas would be allocated to small companies (firms with fewer than 50 employees). This is to address the complaint of small and medium companies that a few large companies eat up all of the H-1B visas in the lottery.
- H-1B dependent employers currently have to pay a $60,000 salary to count themselves as exempt from the recruitment process. That threshold would increase to $130,000 under the bill. There may be a loophole if the employer petitions the employee for a Green Card.
- Per country caps on employment-based immigration visas would be eliminated. There are 140,000 employment-based immigrant visas available a year. The nationals of a country cannot obtain more than 7% of that number. By sheer population, that puts nationals of India and China at a major disadvantage, and they have to spend extraordinary times waiting for their Permanent Residence, despite approved employment-based immigration petitions.
- The L-1 visa remains untouched by this bill. There is no mention of filing fees, which are due to increase anyway. Certain companies have been hit with an enormous filing fee for H and L visa petitions.
List most legislation concerning immigration reform, this could go by the wayside. The legislative process may create even more changes or dilute some of the proposals.
Lawsuit Against H-1B Lottery: Case Seeks Information on the Lottery Process
The American Immigration Council has filed a lawsuit against USCIS, demanding transparency in the lottery process that affects the lives of hundreds of thousands of individuals and thousands of companies. With a statutory cap of 65,000 visas in the regular cap and 20,000 visas in the US Master’s cap, the over 230,000 applications that are submitted in the first week of April are subject to a lottery. However, there is no information on how that lottery works. Applications are submitted in early April and then receipt notices and lottery rejections trickle in over the next months.
In some years, the cap is not reached and there is no need for a lottery. However, for the past few years, the number of applications has been over 200,000 and the cap is reached in the first week of April. As this has become consistent, the need for lottery transparency has become urgent for the American Immigration Council. All that is known about the process is that it is random and computer generated. The lawsuit seeks to elicit more information from USCIS in how this process is conducted.
USCIS Announces H-1B Lottery Is Finished: 85,000 Cases Eligible for H-1B Visas Picked
USCIS announced yesterday that it is has completed the computer-generated lottery system it employs for selecting H-1B petitions. Accepted cases have been receipted, but USCIS mentions that not all cases have been returned – receipt or not. A petitioner will not know for sure whether the case was accepted or not for the lottery until it receives the receipt notice or the checks uncashed in the mail with the unselected petition.
Over 236,000 H-1B cap-subject petitions were filed in the first five business days in April, meaning that over 150,000 petitions will not even be considered for adjudication. Plenty of commentators have harked on Congress to increase the cap because the large volume of H-1B filings means that it is evident employers need this visa. Regardless, the cap has remained steadfast since 2003 and legislation proposing its increase has not made progress.
USCIS also announced that some cases will be transferred from the Vermont Service Center to the California Service Center for adjudication. Both service centers have been lagging behind their stated goal times for adjudications in adjudicating H-1B transfer and extension cases. USCIS did not announce when it expects regular processing cases to be adjudicated. It has announced that it will begin adjudicating premium processing cases on May 12.
USCIS Completes H-1B Lottery
USCIS has completed the H-1B lottery and receipt notices for cases selected in the lottery are in the mail. Those cases that are not selected will receive notices and returned checks later. The lottery is necessitated because of the 85,000 cap for H-1B visas per fiscal year (65,000 regular, 20,000 US Master’s). USCIS reports having received 236,000 H-1B visa petitions this year, meaning that 151,000 petitions will not be selected.
USCIS has announced that will begin adjudicating premium processing cases no later than May 16. Premium processing means that USCIS will render a decision within 15 days (for a fee of $1,225). The earliest start date for beneficiaries who are approved for an H-1B change of status or H-1B visa is October 1.
Cap exempt H-1B visas can be filed at any time of the year. Cap subject H-1B visas were only able to be filed between April 1 and April 7 because of the 85,000 visa cap. The cap has not been increased since 2003. The cap used to be at 195,000, but is now at one third that number.