H-1B Cap Reached

Cap Reached: H-1B Visas Available April 1, 2017

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The H-1B cap has been reached. April 7 was the fifth business day of April and that was the final day to submit a cap-subject H-1B petition for a position that starts on October 1, 2016. The reason that petitions are only accepted for the first five days of April is that there is a limit of 65,000 cap-subject H-1B visas issued per year (plus 20,000 for beneficiaries with US Masters in jobs that require Masters). There is a lottery in effect because over 65,000 and 20,000 petitions are received. Last year around 233,000 petitions were submitted by businesses (mostly).

An H-1B petition can be submitted 6 months prior to the starting date. October 1 is the first day of the new fiscal year, which refreshes the number of H-1Bs available. In the late 1990s and early 2000s, the H-1B cap was much higher than 65,000 (up to 195,000), but it has remained at 65,000 for over a decade. Proposed legislation has sought to increase that number, but movement has not been made. The 1990 IMMACT bill created the H-1B visa. Certain exemptions are made for H-1B petitions to avoid the cap and the lottery. A cap-exempt H-1B visa can be filed at any time during the year.

H-1B Adjudication Date

Date Lottery H-1B Petitions Will Be Adjudicated

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Cap Subject H-1B petitions must be submitted in the first five business days of April. A total of 85,000 cap subject H-1B visas are available: 65,000 in the regular cap and 20,000 for the US Master’s Cap – meaning that the specialty occupation requires a Master’s degree and the beneficiary holds a Master’s degree from a US university. Cap subject H-1B petitions submitted for Fiscal Year 2017 must have a start date of October 1, 2016.

USCIS has announced that it will begin adjudicating petitions on May 16. The lottery process needs to be executed before adjudications take place. Last year, the lottery occurred in the middle of April. Receipt notices were issued for cases that were selected under the cap and then lottery rejection notices came trickling in slowly after that. If the H-1B petition processing begins by May 16, that means a receipt notice should be issued before then to inform the petitioner that the case has been selected under the cap. If premium processing is selected and the $1,225 fee is paid, that means the case will be adjudicated by May 31. USCIS will announce when overseas beneficiaries can begin the consular process, if the underlying H-1B petition is approved by USCIS.

H-1B Filing Alert

H-1B FY 2017 Filing Alert

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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.

India Files Complaint Over H-1B Visa

India Files Complaint Against USA:

Complaint Over Special Fees and H-1B Cap

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India is alleging the United States is engaged in unfair trade practices in the World Trade Organization. The suit is on two bases: the H-1B cap of 65,000 and 20,000 and the enhanced fees that Congress recently slapped on large companies with over 50% of their employees on H-1B or L-1 visas. The case is at the World Trade Organization because India is alleging that the United States has violated trade rules with recently implemented special fees and with the 65,000 cap. The World Trade Organization is the forum where unfair trade restrictions are decided as unfair or fair.

The Cap

The H-1B visa’s lifespan has been governed by a cap, which has historically been larger but has settled in at 65,000 for over a decade. A supplementary 20,000 visas were added for US Master’s graduates. The cap is not exactly 65,000. It is even less, when considering special agreements that the US has with Chile and Singapore. The trade agreement stipulates that 1,400 H-1B visas are allocated for Chilean nationals and 5,4000 H-1B visas belong to nationals of Singapore. For beneficiary nationals of other countries, that means the cap is actually 58,200. Additionally, that is only the cap. A cap is a ceiling not a floor. The US is not required to grant 65,000 cap-subject H-1B visas. It can grant fewer than that.

The US has two arguments against the cap and special allocation of visas for Chile and Singapore. The first is the recent creation of the 20,000 visas for US Master’s graduates. The second is cap-exempt visas, which are reserved for academic, research, and sometimes medical purposes.

Enhanced Visa Fees

In December 2015, an Omnibus Bill was passed that contained some financially harsh provisions against large firms that employ H-1B and L-1 visa holders. While much of the focus in the bill’s germination stage focused on Syrian refugees and the Visa Waiver Program, provisions against these large firms snuck in and have been instituted. For firms that have at least 50 employees, of whom 50% are in H-1B or L-1 status, there is an additional $4,000 fee for every H-1B and $4,500 L-1 initial and extension application. The previous fee of $2,000 was sui generis.

H-1B applications can be expensive for employers. A base filing fee of $325 is required for every application. Depending on the circumstances of the application, a Fraud Prevention and Detection fee of $500 is applied. An ACWIA fee of $750 or $1,500 may be required. H-1B extension and change of status applications are taking such an excruciatingly long time to adjudicate that premium processing is being constructively required. Premium processing requires $1,225. These fees accumulate, especially for multiple workers, escalating fees for every application.

The complaint at the World Trade Organization alleges that this enhanced visa fee is an unfair trade restriction. It is expected that the World Trade Organization will take a year to make a decision at least.

Multiple H-1B Petitions

Multiple H-1B Petitions Are NOT Allowed for Same Beneficiary 

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Much of the US immigration system is a competitive ecosystem. There are a limited number of immigrant visas available each year by category, country, and preference. That is the reason why if you, as a US citizen, sponsor your sister for an immigrant visa, she will not have her Green Card for 15 years. That is why the Employment-Based 2nd preference for India is backed up to 2008, causing Indian nationals to be in H-1B status for 12 years. There are only 10,000 U visas available per fiscal year, causing a backlog of years. Asylum numbers are also limited. The Diversity Visa has a 55,000 per year restriction.

The major restriction in employment-based nonimmigrant visas is the H-1B visa. For some H-1B applicants and petitioners, the lottery system is not a worry. Some H-1B applications are “cap-exempt.” These are reserved mostly for universities. However, the lottery and the cap are a reality for many H-1B applicants and petitioners. Companies provisionally hire employees, on the hope that their petition is selected in the lottery. Last year 233,000 applications were submitted for 85,000 slots.

Given this ultra-competitive ecosystem, employers or employees may look to loopholes to enhance their chances. The Vermont Service Center has emphasized that multiple petitions are prohibited. The law is very clear: “An employer may not file, in the same fiscal year, more than one H-1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A) . . . [F]iling more than one H-1B petition by an employer on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.”

This applies to related entities, as well. It cannot be that Parent Company Alpha and Subsidiary Company Beta apply for Beneficiary Omega unless there is a legitimate business need. If this kind of manipulation is detected by USCIS, it reserves the right to revoke a visa, issue a notice of intent to deny, or notice of intent to revoke a petition. USCIS takes this very seriously, as filing multiple petitions for the same beneficiary is an unfair advantage.

The H-1B cap was not always at 65,000 with the 20,000 for the Master’s cap. In the late 1990s and early 2000s, the cap was in excess of 100,000.