» Immigration Law Updates

USCIS Reaches FY-2015 H-1B Cap; Lottery to Be Held

April 7, 2014 | Tags: FY H | H-1B

The U.S. Citizenship and Immigration Services (USCIS) announced April 7 that it had received enough fiscal-year, regular-cap H-1B petitions (against the 65,000 quota) as well as enough FY U.S.-advanced-degree cases (against the 20,000 additional set-aside) to warrant a lottery again this year. The total number of FY H petitions received has not yet been announced, though it is expected to massively overshadow last year's 124,000 filings due to continued economic recovery and high demand for skilled workers. The date on which the lottery will take place should be announced soon, as the USCIS wraps up initial intake for all petitions received during the filing period ended April 7. During the next few weeks, employers should consider the following:

• The USCIS will hold a computer-generated lottery for all FY-2015 H-1B petitions received from April 1 through April 7, i.e. in the first five business days of the month.
• First a lottery will be conducted for the U.S.-advanced-degree cases. All advanced-degree petitions not selected for the 20,000 limit will then be entered into the regular-cap lottery for the 65,000 limit. So, these petitions will have "two bites at the apple."
• Lottery winners should expect to get receipt notices by mid- to late May. The premium processing clock for FY H winners won't start ticking until April 28, the USCIS announced last month.
• Lottery losers should expect to receive consolation prizes in the form of uncashed filing fee checks, which will be returned along with the rejected H petitions. Remember: It isn't over until you receive the rejected petition!
• Expect a slowdown in the processing of other types of H petitions, such as extensions and cap-exempt filings, as these are pushed to the back burner while FY Hs take top priority. Non-FY H petitions filed this spring could take as long as six months to be adjudicated.

What can employers do while Congress is stalled on comprehensive immigration reform? A relatively painless, piecemeal legislative fix is available, if Congress would only consider it. The statutory language has already been drafted, and this fix has historical precedence on its side.

• Congress need only look back to the year 2000, when it passed the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) with bipartisan support. The passage of AC21 raised the number of H-1B visas by 297,500 over a three-year period, from FY 2000 to FY 2002.
• Again mustering bipartisan support, Congress should increase the FY H numbers to 195,000 for a temporary, three-year period, which would start for this current FY-2015 year.
• Along with signaling good faith, this would provide some immediate relief while Congress comes to the realization that it will need to tackle comprehensive immigration reform after the midterm elections.
• Congress would instruct the USCIS to adjudicate the rejected FY H petitions (the "lottery losers") and to provide "cap gap" relief, which is seamless work authorization until the new fiscal year begins October 1.
• If you agree, contact your elected representatives and tell them so.

Employers also should keep in mind the following FY H backup plans:

• Consider enrolling in the government's online employment verification system, E-Verify, to be able to obtain an additional 17 months of work authorization for F-1 student employees who have U.S. STEM degrees.
• An employee who works part time at a nonprofit research institution may obtain an additional H-1B to work simultaneously for a private company, and that second H petition won't be subject to the H-1B cap.
• Consider other visa options for rising stars, such as the extraordinary ability O-1 petition.
• H-1B carve-outs exist for Chilean and Singaporean professionals.
• Australian professionals are eligible for an H-1B alternative, called the E-3 visa.
• Canadian and Mexican professionals are eligible for TN visas under NAFTA.
• Good news for employers with employees working based on student F-1 OPT work authorization. Note that while work authorization ceases as of the date the OPT EAD card expires, such an individual has a 60-day "grace period" that follows before he or she must leave the country.

Tech entrepreneurs are creating jobs and driving economic growth. Let's not let Congress hold this progress hostage to severely outdated immigration laws. March Madness shouldn't have to be so painful! Congress needs to step up with a legislative fix based on precedent, and raise the FY H-1B numbers to 195,000 for a temporary, three-year period. We'll keep you updated with developments.