It’s that time of year again when human resources professionals should be finalizing offers for “specialty occupation” positions they plan (or hope) to fill with foreign nationals who need H-1B visas. The filing season for fiscal year 2015 will open up again on April 1, 2014 for jobs that can begin starting October 1, 2014, the start of the government’s next fiscal year. Applications for H-1B workers who are subject to the annual cap will not be accepted before April 1; therefore, they need to be ready for the mail no later than March 31, 2014.
This ridiculous once-a-year timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies and non-profits with qualifying “affiliations” with the foregoing institutions. Cap-exempt organizations can file all year long. Therefore, it is mostly private sector positions at companies and nonprofits not engaged in research (or lacking affiliation agreements) that are subject to the cap.
The GOP members of the House recently announced that they refuse to move immigration reform legislation along this term. Last June, the Senate passed a massive overhaul bill that would have increased the H-1B numbers. Because no fix is on the horizon before the next filing period, employers are stuck again this year with the same old outdated mad dash to file H-1B applications on April 1 within a very short filing window. An upswing in hiring nationally usually translates to high demand for H-1B workers. This is why a market-based H-1B program is needed instead.
Last year, the filing “season” lasted one week. In addition, there was a lottery due to the flood of applications, making the whole program uncertain for employers who need global talent at the time they file. For FY2014, USCIS received 124,000 petitions for 65,000 cap subject cases plus the additional 20,000 petitions available to those with US masters degrees. Of those, 65,000, 6800 are reserved for Chilean and Singaporan H-1B applicants. Essentially, demand was more than double last year for the available visas.
Logistically, the way the cap cases work, is that employers send in their applications for filing starting April 1 (or until USCIS announces it will stop accepting any more). If there is a lottery, USCIS will conduct it within a few weeks. Employers will know their cases are selected when they receive a fee receipt with case number indicating their filing fee checks were cashed. USCIS will return the cases (and filing fees) if an application is not selected. USCIS will then spend the following months processing the selected cases. Employers can ask for expedited processing for an additional $1225 fee.
The problem with caps
Every year since the cap dropped to 65,000 (plus 20,000 for individuals with US masters degrees), it has been reached well before the end of the fiscal year. Therefore, every year, employers are stuck with a very narrow timetable in which to file applications. When the economy tanked at its worst in 2008, the cap was still reached, albeit in several months. When the economy was at its best with strong job growth, the 65,000 (+20,000) visas were used up in a day. As noted above, last year, the cap was reached in a week. Therefore, anyone wanting to hire an H-1B employee subject to the cap for jobs that are open now will have to wait to file on April 1, 2014 for jobs that cannot begin until October 1, 2014! If you don’t like what you are learning about this program, it is important to write to your Congressional representative to let him or her know that this program fails to provide the predictability employers need to streamline their hiring processes so they can timely staff projects, especially those that are time sensitive and can occur at any time of year. (Customize an email to Congress here.)
Who is not subject to the annual cap and can file all year long?
1. Individuals already counted toward the cap in prior years who need extensions, who are changing or adding employers, or who are changing the terms of their employment.
2. Individuals to be employed by nonprofit or government research organizations, or institutions of higher learning and their affiliated nonprofits.
3. The first 20,000 applicants with US masters degrees are exempt from the 65,000 cap. We just call this the masters cap. Once those 20,000 are used up, additional masters degree applicants go into the 65,000 cap pool.
4. Private sector employers or nonprofits not engaged in research who have “affiliation” agreements with the organizations in #2 above, AND where the employee will work “at” one of these cap-exempt organizations.
5. Nonimmigrants admitted to perform labor and services in Guam or the Commonwealth of the Northern Mariana Islands (CNMI).
Are you an employer new to H-1Bs?
In my many years of experience filing these cases, I have concluded that there are three types of employers. The first group knows about H-1Bs, has searched high and low for qualified US workers, and has not been able to fill positions with enough qualified US workers. When they come across talented foreign nationals, they file for H-1Bs, not because it’s cheap to hire H-1B workers, because it isn’t. Rather, to remain competitive in the industry, employers will hire top talent even though the cost of filing fees, qualifying wages, compliance, and legal fees is significant to the overhead cost of that employee. These employers expect to recoup their costs through the value added by a talented employee and the potential for that employee to create other jobs for US workers, create new inventions or products, or develop new markets for the employer, directly or indirectly.
The second group of employers that I speak with are those without prior experience with H-1Bs, but are open to learning more, and likewise, have not been able to find a qualified US worker. Once the employer understands the process, what is required, confirms the cost to hire is within budget, and the employer determines the foreign national will add value to the company, these employers will test out H-1Bs for one or more employees. If the experience is satisfactory, they may hire additional H-1Bs in the future or limit their use of the program to the occasional situation when they run into a great person who happens to be from another country.
The third group of employers refuse to have anything to do with foreign nationals. Sometimes that is due to ignorance of the law, even if other visa options are available. Sometimes it is pure national origin or citizenship bias, in which case, the employer may be bordering on employment or immigration related discrimination or I-9 or E-Verify violations (e.g., improperly using national origin or citizenship to pre-screen individuals instead of documenting status upon hire). (For best practices, see http://tinyurl.com/on5oq33.) But most of the time, it’s because the employer simply doesn’t want to be involved, can’t afford the process, has found equally or better qualified US workers, just needs a body to fill a position, even if the US worker is less qualified, or where talent or extensive knowledge isn’t a requirement or concern.
There could be other options for your foreign candidates, however, besides the H-1B program. The only way to know is to contact an experienced immigration lawyer who can get to know your business needs, job opportunities and requirements, and then do a review of your candidates’ credentials, immigration and work history, and family circumstances. Sometimes spouses have better credentials, there are family members to sponsor your candidate, your candidate is eligible for a different type of work authorization, or perhaps the candidate is a US citizen and doesn’t know it. It never hurts to find out more information if you come across a truly exceptional or qualified foreign national candidate.