The H-1B cap situation is even worse than last year, which means employers are continuing to hire. USCIS announced today that it received 172,500 H-1B petitions for 85,000 available visas, compared to 124,000 last year. These were received at USCIS during the first week of April for the FY2015 filing season for specialty occupations with selected employees scheduled to begin work on October 1, 2014 (unless employees already have some underlying work authorization). Because the number of petitions far exceeds the supply, there will be a lottery. Unselected cases and fees will be returned to the petitioners or their attorneys. Such a large number of applicants for so few visas reflects yet again, that the H-1B cap introduced in the 1990s simply doesn’t work or match the needs of the economy.
During the recession, the number of filings was far fewer than in growth years. But even then, the cap was reached in a few months instead of a few weeks or a few days. Congress has quite the disconnect with employers’ needs. On the other hand, this year’s group of selectees may be pretty lucky for reasons other than numbers. S. 744 passed by the Senate last year, while raising the cap, would have also made the program much harder for employers to deal with in lots of other ways, especially those employers who place workers at third party sites. What Congress should really do, in this author’s opinion, is make a separate set of rules and numbers for third party placements so that their unique situation does not bleed into the needs of the majority of employers who do not conduct third party placements. Whatever Congress ends up doing in the future, if anything, if ever, it should be a program that can be easily understood, that is useful to employers, protects immigrant and US worker rights alike, and makes it predictable for employers to be able to know when and how they can assign H-1B workers to timely projects. Most employers are dealing with a fast paced environment, with quickly changing products, technologies and services over short life cycles. They need a predictable work visa system that matches the needs of employers all year long to staff important projects.
What H-1B filings are still available for the rest of the year?
- H-1B extension cases;
- Requests for change in the terms of employment for current H-1B workers;
- Requests by current H-1B workers to change employers (but check with counsel about changing from cap-exempt to cap cases);
- Requests by current H-1B workers to work concurrently in a second H-1B position.
- Applications to work for cap-exempt employers or in cap-exempt jobs and those affiliated or related to cap-exempt employers
- Applications to perform labor and services in Guam and the Commonwealth of the Northern Mariana Islands. (This group has its own cap and cases must be filed before December 31, 2014.)
Of course, there is always looking into alternatives to H-1B visas such as E-3s for Australians, Os, TNs, Ls, E-1/E-2 visas, and other categories as well as work authorization through spouses in categories that permit dependent work authorization or other family based immigration. And, there are special rules for Chilean and Singaporean H-1B1 applicants.