USCIS has announced that it received nearly 233,000 H-1B applications during the first week of April, nearly three times the available quota. This means that nearly two-thirds of all applications submitted to the agency will be rejected and applicants will want to consider alternative avenues to work authorization. The agency has already begun to issue receipts for cases selected through the lottery.
USCIS Lottery
By statute, the number of newly available H-1B visas for a particular fiscal year is capped at 65,000, with an additional 20,000 H-1B visas available to those with a U.S. Masters or other advanced degree. USCIS initiated the random selection process for cases filed through the lottery on April 13, 2015. The agency has already begun issuing “electronic” receipts for cases requesting premium processing that were selected through the U.S. Masters lottery. These receipts are expected to continue rolling in over the next few days. Cases not selected through the U.S. Masters lottery will be placed into the general lottery. The receipts for all premium processing cases are expected to be issued on or before April 26, 2015. USCIS has already announced that the 15-day “premium processing” period for cases selected through the lottery will begin on April 27, 2015. The receipts for those cases requesting “regular” processing selected through the lottery are expected to arrive through the regular mail in early- to mid-May. Cases not selected through the lottery will be returned in May and June along with their filing fees.
H-1B Quota Exceptions
The exceptions to this quota include H-1B visas sponsored by higher educational institutions or related or affiliated nonprofit institutions, government research organizations, and nonprofit research institutions. Such institutions can submit H-1B visa applications anytime throughout the calendar year. (TEJAS – IS THIS RIGHT) Additionally, the following foreign national workers are not subject to the H-1B visa cap:
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Existing H-1B employees who seek to change employers;
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H-1B employees who are seeking to extend their H-1B status; or
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H-1B employees who have been counted against the cap within the last 6 years;
Also included within the category of “exempt” employees are those sponsored for a second, “concurrent” H-1B, and those seeking to amend their existing H-1B status due to a material change in the terms and conditions of employment.
Alternatives to the H-1B Visa
As rejected petitions are returned, employers will need to carefully consider whether there are alternatives to the H-1B in consultation with immigration counsel. Options in a few cases may include the L-1,E-1/E-2, O-1, TN, and E-3 visa. Certain other regulatory changes and executive actions this year are expected to expand the number of work-authorized individuals and potentially provide greater employment portability to individuals with pending or approved employment-based visa petitions. Nevertheless, some employers and individuals who were relying upon the H-1B visa will have to prepare for some disappointing news and act quickly with immigration counsel to identify alternatives.
