H-1B Season is Here!
Today is April 1, 2015 and aside from being April Fool’s Day, it marks the opening of USCIS’s acceptance of H-1B visa petitions for the 2016 fiscal year.
For those of you who are not familiar with the H-1B non-immigrant visa, it is limited to people who have, at minimum, a US bachelor’s degree or its foreign equivalent who will then work in a ‘specialty occupation’ in the US for a period not to exceed six years. A ‘specialty occupation’ is defined as:
– A bachelor’s degree or higher is normally a minimum requirement for the job;
– The degree requirement is common in the industry, and the job is so complex/specialized that it can only be performed by someone who has attained such a degree; and
– The employer normally requires such a degree in its own business practice. (*this is just a basic outline of the basic requirements. Please contact our office if you feel you are eligible to apply for an H-1B visa)
Once determined that a potential beneficiary meets the specialty job description, the employer must apply for a labor condition application (“LCA”) through the US Department of Labor, attesting to the wage offered and job location. Upon certification from the DOL, the employer must file the H-1B petition and supporting documents with USCIS.
USCIS begins accepting H-1B petitions on April 1, and for 5 days after. (Basically the first week of April). However, and here is the difficult part, USCIS only has 65,000 H-1B visas available per fiscal year. Last year, there were nearly 200,000 applicants and 65,000 visas. Fiscal year 2016 is anticipated to break 200,000 applicants, and there have been no increase in the visas allotted. To fairly choose the visa beneficiaries, USCIS places all correctly-filed H-1bs into a lottery, and a computer program basically randomly chooses the 65,000 visa beneficiaries. If you lose the lottery? Better luck next year, or look for find other visa options to get to the USA.
Normally I am a staunch advocate for family and removal-based immigration reform, but dealing with the H-1B visa system placed the need for employment-based immigration reform in a new light. The annual cap of 65,000 H-1B visas available is completely insufficient for the demand. Of course I am not advocating that every foreign national who is eligible for a visa should get one, but rather just changing the system to be a little more fair and have realistic opportunities for foreign-born workers to get to the USA and perform the needed jobs. The same problem is present for H-2B workers (low skilled seasonal workers). With a limited annual cap and stringent requirements for the employers, the H-2B visa system is becoming increasing difficult for employers (and attorneys, for that matter) to navigate successfully. This year especially, many H-2B employers are at a loss due to the DOL lawsuit and injunction.
Bottom line? The US needs employment-based immigration reform nearly as much as it needs family/removal-based immigration reform. Today, April 1, marks the start of USCIS’s acceptance of the H-1B visa petitions. Many people will be disappointed, and the few who are lucky enough to be chosen for the lottery still have an battle ahead. Good luck to everyone, and hopefully there will be no cruel April Fools Day joke on H-1B employers and beneficiaries!