The H-1B visa program is an important source of skilled IT workers, which remain in tight supply, for US employers. With the fiscal year (FY) 2016 H-1B visa filing season rapidly approaching, let’s take a closer look at how the program works and what changes may be on the horizon. The window to file petitions with US Customs and Immigration Services (USCIS) opens April 1 and is unlikely to remain so for more than a week; thus, employers that intend to utilize the program are advised to start preparing the required paperwork now. Detailed information on the program and filing process can be found on the USCIS website.
The H-1B visa program allows foreign citizens who possess highly specialized knowledge or training, such as in science or technology, to legally work in the US. Individuals granted H-1B visas are authorized to remain in the US for a period of up to three years, after which they may apply for an extension, though generally not to encompass more than six years in total. Visas granted in the April filing season convey the right to begin working on October 1 of that year, when the federal government’s new fiscal year commences.
There is a limit, or cap, of 65,000 on the number of H-1B visas that may be granted in a given year, with an additional 20,000 reserved for individuals who have earned a US Master’s degree or above. The H-1B petition filing period is mandated by law to remain open at least five business days, or until the cap is reached, whichever is longer. If USCIS receives more petitions than can be granted under the cap, it will commence a computerized random selection process, or lottery. The lottery is first conducted for petitions claiming the advanced degree exemption, with any petitions not selected in that round (those in excess of the 20,000 advanced degree cap) then added to the regular H-1B petitions for a second lottery to allocate the 65,000.
One requisite component of the H-1B petition filing package is a certified Labor Condition Application (LCA). The LCA is filed with, and certified by, the US Department of Labor (DOL). Regulations allow the DOL to take up to seven business days to adjudicate an LCA, though employers that have not previously registered with DOL must first do so, which may add three business days to the total length of the process. Also, heavy traffic on the Web-based LCA filing system as April 1 draws near has caused it to function slowly or to stop working altogether in prior years, so it would behoove employers to complete that step sooner rather than later. Forms and additional details on the LCA filing process can be found on the DOL website.
Click on chart to enlarge.
As shown in the table above, H-1B petitions received by USCIS have exceeded the cap within the first week of the filing period for each of the last two fiscal years, which had not occurred since the FY2008 filing period. Moreover, the number of petitions received last year increased by about 39% from the prior year, and we expect it to rise again this April. One factor is that, for many applicants, this represents the only viable path to work legally in the US, so if their petition is unsuccessful they must try again next year. Meanwhile, employers anticipating a lottery tend to increase the number of petitions they file due to the likelihood that only a fraction of those will be granted.
The inelastic cap on H-1B visas represents a significant constraint on the availability of tech talent in the US. There may be some relief on the horizon, however, in the form of the Immigration Innovation (or “I-Squared) Act of 2015, a bill introduced last month in the US Senate. Among many reforms, the proposed legislation would increase the base H-1B cap from 65,000 to 115,000 and allow it to float as high as 195,000 for a given fiscal year based on the volume of early filings, while doing away with the cap on advanced degree holders altogether. While it might seem dubious to pin one’s hopes on any congressional action in the current political climate, it should be noted that this is one issue with significant bipartisan support, as evidenced by this bill’s cosponsors including three Democrats and three Republicans.
