As in recent years, the strong demand for H-1B visas for scientists, engineers, computer programmers, and other foreign workers in so-called “specialty occupations” again led employers in the United States to file petitions in such great quantity that they quickly exceeded the number available under the U.S. Citizenship and Immigration Services (USCIS) annual cap. Each year, beginning on April 1, USCIS accepts petitions for up to 65,000 H-1B visas plus an additional 20,000 reserved for those who possess an advanced degree, interpreted as a master’s degree or higher from a U.S. college or university. On April 7, 2015, USCIS announced that it had reached its cap for fiscal year (FY) 2016 for both of those categories. This is the third year that the cap has been reached within the very first week following the initial April 1st filing date.
Those who have filed a petition on behalf of a foreign worker holding an advanced degree will have an opportunity for that individual to be selected at random by USCIS to receive one of the 20,000 H-1Bs issued under the advanced degree exemption. Those individuals who are not selected under that exemption and all other individuals who filed as of April 7, 2015—the day USCIS officially notified the public that it had reached its FY 2016 H-1B cap—will be automatically entered into the general H-1B lottery wherein USCIS uses a computer-generated process to randomly select the “winning” petitions.
USCIS has not yet released the exact number of petitions it received, but is expected to do so in the coming days. Pointing to “the high number of petitions,” USCIS, in its press release, also indicated that it could not yet announce an exact date for when the lottery would occur. Ogletree Deakins’ Immigration Practice Group will continue to monitor updates from USCIS and will provide news on these topics and others as it becomes available.
Who Falls Outside the Cap?
According to its official website, “USCIS will continue to accept and process petitions that are otherwise exempt from the cap.” Included among those individuals whose petitions USCIS will continue to process are H-1B workers already counted against a previous year’s cap who are seeking (1) to extend the time under their existing visa, (2) to change their employers, (3) to work concurrently in a second H-1B position, or (4) to otherwise amend the terms of their current employment.
What Happens to Those Not Selected in the Lottery?
USCIS will reject all petitions not selected in the lottery and will refund filing fees to petitioners whose petitions the agency rejected. Rejected petitioners will still need to secure work authorization for those individuals who they had hoped to sponsor with the H-1B petition.
What Options Might Be Available?
For many, the next step will be to set their sights on next year’s H-1B lottery. However, depending on the nature of the position and the qualifications of the foreign national seeking employment, there may be other options available beyond the H-1B path. Some could be eligible to extend Optional Practical Training work authorization, qualify for a Trainee visa or take advantage of special categories for Canadian and Mexican citizens. For others an alternative may be to re-enroll in school or to work for the petitioning company abroad. Because there are very specific criteria for each of these and other courses of action, employers should educate themselves fully on the business immigration particulars before selecting or pursuing a particular course.
