Will The H-1B Cap Be Reached This Year ? If Not, Has The Time Come To End The Arbitrary H-1B Quota?
The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign-born, professional workers. The H-1B category requires sponsorship by a U.S. employer and is limited to specialty positions which generally require the candidates hold at least a bachelor’s degree or the equivalent in a relevant discipline. It now appears that the impact of the economy on H-1B usage will be felt for at least another year.
The annual cap or quota for new H-1B visas is set by Congress at 65,000 new visas per year, not including the 20,000 H-1B visas available under the U.S. advanced degree cap exemption. As of April 1st, the “filing season” for new H-1B visas was officially underway.
This morning, April 9, United States Citizenship and Immigration Services (“USCIS”) issued a press release updating the number of H-1B petitions it has received to approximately 13,500 petitions counting toward the regular cap, and 5,600 petitions received by individuals with U.S. advanced degrees.
To compare/contrast the number of H-1B filings this year versus last, as of April 9, 2009, USCIS reported it had received nearly 42,000 H-1B petitions counted towards the regular cap and 20,000 petitions under the U.S. master’s cap, yet the H-1B quota was not reached until December 21, more than eight months after the opening of the filing period.
By sharp contrast, two years ago, when the economy was more robust, employers filed so many H-1B petitions during the first days of the filing period that USCIS was forced to create a “random lottery selection” system to establish some fairness among applicants. Indeed, in FY 2009, both the general and the advanced-degree quotas were exhausted in the first five days of the filing period in April 2008, with an estimated 163,000 H-1B filings in total.
At least from the outset, this year (FY 2011) appears to have even lesser demand for new H-1B visas than last year. Indeed, according to USCIS’ press release, the Service has received only about 20% of the regular cap petitions needed to meet the annual regular cap of 65,000, and 28% of the petitions available under the advanced degree cap in the first nine days of filing.
We are certainly living in different times; a different economy. Given the real impact of the economy on H-1B usage, one might ask whether there is any justification to place an arbitrary limit on the number of H-1B visas available in any given year?
As such, this year (once again) presents an opportunity for employers who, in the past, may have opted not to file H-1B petitions for otherwise eligible workers because of the potential for wasted efforts and resources should the petitions not be selected in the random lottery selections we had to deal with in prior years.
Please note that the cap applies only to petitions for new employment; beneficiaries of H-1B extensions and transfers (from one U.S. employer to another) are not subject to the annual quota. Additionally, employees of qualified institutions of higher education and certain non-profit or government research organizations are typically exempt from the quota.
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Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
