Immigration and firm news

Get Ready for H-1B Filing Season Now

Finalize those offers now and prepare for April 1, 2015 H-1B Cap Filings

It’s that crazy time of year again when immigration lawyers and employers try to finalize offers to candidates needing H-1B cap-subject visa petitions so they can be filed during the short five-day period beginning April 1, 2015. Given growth in the economy and recent statistics showing increased job creation, immigration attorneys expect that, like last year and every year before, demand for cap H-1Bs will exceed supply.  Therefore, February and March is the time to finalize those offers and get cases started with your immigration lawyer.  Last year, there were 172,000 applications for 85,000 spots. (20,000 of those are reserved for applicants with US masters degrees.) The year before, there were 124,000 applicants.  This resulted in a lottery, once again giving employers no predictability about whether they can really hire the candidate until later in the Spring or Summer.  And on top of everything else, those candidates selected will not be able to start work in H-1B status until October 1, 2015 unless they have some other type of interim work authorization such as F-1 OPT. Why bother at all? Many employers simply cannot find qualified US workers in many sectors of the economy after recruiting extensively for months.  With the high number of filings the last two years, employers are obviously desperate enough to take a chance and file even if it is a lottery. Likewise, if there were qualified US workers, employers would not spend their time and money filing for expensive H-1B workers. (Employers can take a little heart in knowing that if your candidate is not selected, USCIS will return the application and filing fees.)

Who is not subject to the annual cap and can file all year?

  • H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization
  • H-1B workers previously counted against the cap and are seeking to extend stay or change employers;
  • Changes in terms of employment or amendments
  • Some concurrent H-1B employment

Still no Congressional fix to cap numbers

We can thank Congressional inaction to this ridiculous problem for employers and foreign national candidates for highly skilled occupations.  The House, in particular, has refused to vote on any type of immigration bill that is likely to pass both houses of Congress and be signed by the President in order to fix this problem.  In June 2013, the Senate passed S.744, which would have increased the numbers of available H-1B visas (but also changed many other aspects of the program).  And, in the fall of 2013, House Democrats introduced H.R. 15 that would have tracked S. 744. http://immigrationimpact.com/tag/h-r-15-and-s-744/ Other skills based immigration legislation introduced as standalone bills, were never voted upon in the House. Thus, we are where we are since 1990 when caps were first introduced.  For years,  the cap gets reached anywhere from within a day to a few months at the hight of the recession. During the rest of the year, employers cannot file H-1B petitions until the following April for jobs that cannot begin until the subsequent October. If an employer misses this coming filing season, it’s mind numbing for an immigration practitioner to have to tell employers who find the perfect candidate in mid-April, in June, October or December, that they will have to wait until April 1, 2016 to file an H-1B petition for a job that can’t begin until October 1, 2016.  Employers don’t just hire in winter/early spring, as their personnel demands fluctuate all year long.

Contact Congress Regarding S. 153

On January 13, 2015, however,  Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), Coons (D-Del.), Flake (R-Ariz.), and Blumenthal (D-Conn.) introduced the bi-partisan Immigration Innovation (“I-Squared”) Act of 2015. This bill (S-153) was first introduced in the 113th Congress. Among the bill’s H-1B related provisions are the following:

  • Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
  • Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
  • Authorizes employment for dependent spouses of H-1B visa holders.
  • Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

If you support S.153, please contact your Senators and Representatives now.  See our Advocacy page and click on the “Contact Congress” Button on the right.

Executive Action and AILA comments on the RFI to “Modernize and Streamline the Visa System”

On November 20, 2014, President Obama issued several memos as part of his Executive Action initiative asking the various agencies involved with immigration to develop new policies or issue new regulations within the scope of statutes already enacted by Congress. (While the President and his administration cannot exceed the limits of Congressional statutes, the Administration can adopt policies, procedures and regulations that implement those statutes).  One of those memos calls upon the US Departments of Homeland Security (USCIS) and the US Department of State to look at “Modernizing and Streamlining the Visa System.”  The American Immigration Lawyers Association (AILA) recently sent the agencies its suggestions for improvements, part of which addresses the H-1B program.  In particular, AILA suggested USCIS:

  • Restore flexibility in the adjudication of H-1B specialty occupation employees and eliminate unnecessary barriers for small and emerging businesses;
  • Do not require a new H-1B petition every time a new LCA is filed for a change in job location;
  • Provide for a more generous definition of “affiliated or related” entity for cap exemption;
  • Expand employment authorization to all spouses of employment authorized principal nonimmigrants;
  • Improve the quality and consistency of adjudications by curbing use of template Requests for Evidence (RFE)s, and enforcing application of the appropriate standard of proof, and
  • Providing better protections for employers and employees in the context of fraud and site visits.

We will discuss this memo and other proposals for modernizing and streamlining the visa system in upcoming blog posts.