Lottery mania has been sweeping the nation as Powerball winnings exceeded $1 billion for the first time. For highly skilled foreign nationals and the employers who desire to employ them, a different kind of lottery mania is mounting in advance of April 1, 2016, when the H-1B visa filing window opens for fiscal year 2017. If recent history is any guide, employers should begin preparations now for April 1, because all available H-1B visas will be gone before you can say “jackpot!”
The Winning Ticket – H-1B Visas
H-1B visas are available to candidates filling “specialty occupations” for U.S. employers, which are jobs that require “theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor.” Federal regulations include a list of fields as examples: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. But any field or profession may qualify if a bachelor’s degree or higher is normally the minimum requirement for entry into the particular position, if such a degree requirement is common in the industry, or if the duties of the role are sufficiently specialized and complex. In all cases, however, the required degree must be in a specific field of study related to the offered position, rather than a general or unrelated degree.
The H-1B visa petition process is complex and multilayered. For example, prior to filing an H-1B visa petition, an employer must post a notice internally declaring its intention to sponsor a foreign professional for the visa. The employer must also file a labor condition application with the U.S. Department of Labor attesting that it will pay the H-1B worker the same wage it would pay any other employee with similar qualifications or the prevailing wage for the occupation in the area, whichever is higher. Employers must also promise that employing the H-1B worker will not adversely affect the working conditions of U.S. workers. After these steps are completed, the H-1B visa petition must be assembled and filed with U.S. Citizenship and Immigration Services (USCIS).
Scarcity of H-1B Visas
Planning ahead for the April 1 filing period is critical for H-1B visas because, unlike other visa classifications, most new H-1B visas are subject to an annual limit of approximately 85,000.
During the first five business days of the month of April (through April 7, 2016), USCIS will collect and count all petitions received. If the number exceeds the cap of 85,000, a lottery will be held to identify those lucky petitions that will be accepted for processing.
It is a virtual certainty that the H-1B cap will be exhausted between April 1 and April 7. With the exception of a four-year period during the recent economic recession, the cap has filled during the first week in every year since 2007. Meanwhile, as the economy improves, the success rate drops. In 2014, employers filed 172,500 new petitions, with 49 percent selected for processing. In 2015, more than 233,000 petitions were filed, which lowered the selection rate to 36 percent.
Odds are that 2016 will see similar results. Slightly better than Powerball, but stressful nonetheless for employers and the foreign professionals they seek to employ.
Hope for the Unlucky
For those employers and foreign professionals who miss out on the cap for any reason, all hope is not lost. There are several exemptions from the H-1B cap lottery, including petitions for employment at institutions of higher education or with nonprofit organizations associated with an institution of higher education, as well as for nonprofit/government research organizations and foreign medical school graduates with J-1 visas who agree to work in underserved areas. Qualifying employers and foreign professionals may apply for “cap exempt” H-1B visas at any time of the year.
Employers may also seek to utilize other visa categories that are not subject to an annual cap or the randomness of a lottery. For example, O visas are available to persons with extraordinary ability in the sciences, arts, education, business, or athletics. L visas are available to employees of a foreign branch or affiliate of a U.S. company transferring to the United States. E visas are available to persons wishing to carry on substantial international trade between the U.S. and their foreign countries, persons wishing to develop and direct a business in which they have substantially invested, and key employees of either of the above.