USCIS Announces H-1B Cap Was Reached Within First Week After Petitions Accepted

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April 7 --U.S. Citizenship and Immigration Services announced April 7 that it has received a sufficient number of employer petitions for H-1B highly skilled guestworker visas to reach both the 65,000 cap for fiscal year 2015 and the additional 20,000 visas for guestworkers with advanced degrees.

The USCIS said it will be conducting a computer-generated lottery to determine which petitions it will select for processing, beginning with those for the 20,000 advanced-degree visas. Petitions not selected during the initial lottery will be included in the lottery for the 65,000 H-1B visas.

Employers whose petitions ultimately aren't selected will be returned, along with any fees paid, the USCIS said.

The agency said April 7 that it wasn't able to announce the date of the lottery yet, because it was still completing the initial intake of a “high number” of petitions.

The USCIS said it will continue to process petitions that aren't subject to the H-1B cap, including petitions filed on behalf of current H-1B workers subject to the cap in a previous year.

According to the USCIS, H-1B petitions that aren't subject to the cap include petitions to:

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • change the terms of employment for a current H-1B worker;
  • allow a current H-1B worker to change employers; and
  • allow current H-1B workers to work concurrently in another H-1B position.

This is the second consecutive year that the H-1B cap has been reached in the first week petitions could be filed. Last year, the USCIS between April 1 and April 5 received about 124,000 petitions for the total 85,000 visas available for FY 2014 (31 HRR 374, 4/15/13).

Prior to that, FY 2009 was the last year for which the H-1B cap was reached within the first week employers could apply--starting April 1, 2008--and the last time the USCIS conducted an H-1B lottery.

Result 'Completely Expected.'

“Reaching the H-1B cap is completely expected,” Migration Policy Institute President Demetrios Papademetriou told Bloomberg BNA April 7. “After all, the economy at the high end continues to grow, global firms are indeed always in the hunt for talent,” and even with all of the exemptions from the H-1B cap, “we're not going to satisfy the demand on the part of these businesses,” he said.

“I can think of no circumstances except the complete collapse of the economy” under which employer demand will be as low as the H-1B cap, Papademetriou said.

Both the comprehensive immigration bill (S. 744) passed by the Senate June 27 (31 HRR 677, 7/1/13) and a high-skill employment visa bill (H.R. 2131) passed by the House Judiciary Committee the same day would increase the number of available H-1B visas.

S. 744 would allocate between 110,000 and 180,000 H-1B visas, depending on the market--with an additional 25,000 for guestworkers with advanced degrees--while H.R. 2131 would increase the base H-1B cap to 155,000 with an additional 40,000 for guestworkers with advanced degrees.

But Stephen Yale-Loehr, of counsel to Miller Mayer LLP in Ithaca, N.Y., and a professor at Cornell University Law School, told Bloomberg BNA April 7 that even those numbers may not be enough to meet employers' demands. Based on discussions with fellow immigration attorneys, he said it is likely that more than 200,000 H-1B petitions were filed this year.

The number of H-1B petitions that employers file “ebbs and flows depending on the economy,” but “it shows how broken our immigration system is” that employers have to rely on the results of a lottery to determine whether they can hire the worker of their choice, Yale-Loehr said.

Employers differ on the reasons for seeking an H-1B visa, he said, but in some cases--particularly in the science, technology, engineering and mathematics fields--foreign nationals may be the only qualified applicants an employer receives.

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