2017 H-1B Visa Cap Filings Set New Record

One-third of petitions chosen for visas

By Roy Maurer Apr 13, 2016
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Employers filed approximately 236,000 petitions for H-1B guestworker visas for fiscal year (FY) 2017, a lower total than some were predicting, but still surpassing last year’s record by 3,000, according to U.S. Citizenship and Immigration Services (USCIS).

U.S. employers generally use the H-1B visa program to employ foreign workers in occupations that require specialized knowledge in fields such as science, engineering and computer programming.

For the fourth consecutive year, USCIS received far more petitions than are allowed under the statutory cap of 65,000 visas, plus 20,000 visa petitions filed under the advanced degree exemption. In 2013, USCIS received 124,000 petitions, followed by 172,500 in 2014 and 233,000 petitions in 2015. In each of the four years, the cap was reached during the first week that employers could file for the visas.

Lotteries for both the standard and advanced degree H-1B caps were held April 9 to pick the FY 2017 H-1B cases to be processed for a work start date of Oct. 1, 2016. “This is a random process with no preference given to the type of position, or the beneficiary’s country of birth,” said Esther Contreras, a principal in the Chicago-area office of law firm Masuda Funai.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit, and ultimately about two-thirds of petitions were rejected.

“Overall, H-1B petitions had a mere 36 percent chance of being selected in the lottery,” said Justin Storch, manager of agency liaison at the Council for Global Immigration (CFGI), based in the Washington, D.C. area. Employers not eligible for the U.S. advanced degree cap had a 30 percent chance of having a petition selected, he added.

“Once again, U.S. employers have lost out in the global race for talent, and once again our entire economy continues to pay a high price for our outmoded immigration system,” said CFGI Executive Director Lynn Shotwell. “Our continued reliance on a system of chance to determine a critical part of our future workforce is unfortunate and the arbitrarily low number of high-skilled visas only hurts everyone.”

This year’s significantly smaller increase in number of H-1B petitions (a 1 percent increase, compared with last year’s 35 percent year-over-year growth) isn’t an indication of waning demand, said Dick Burke, president and chief executive officer of Visanow, an immigration processing service provider based in Chicago. “It’s rather reflective of what we heard from certain companies—that many of them are giving up hope on the program after years of being turned away.”

Another reason for the less-than-expected amount of filings may have to do with recent legislation doubling fees required of heavy users of the visa program. Employers with 50 or more staff in the U.S., and with 50 percent or more employees on H-1B visas are required to pay a $4,000 fee on top of the standard filing fees.

Next Steps

USCIS will return all unselected petitions with their filing fees, unless a petition is found to be a duplicate filing. The agency will continue to accept and process petitions that are otherwise exempt from the cap, including petitions filed on behalf of current H-1B workers previously counted against the cap, and petitions for extensions and changes in the terms of employment.

The agency will begin premium processing for H-1B cap cases no later than May 16.

“Due to the large volume of H-1B petitions, it generally takes the USCIS a few weeks to begin to issue receipt notices,” Contreras said. “Premium processing receipt notices are e-mailed first with the normal processing receipt notices being mailed in a few weeks. We assume that it may take the USCIS several months to return the petitions that were not selected.”

H-1B Alternatives

Employers should have already begun assessing alternative options to keep valued foreign workers in the U.S. Alternative visa options include:

  • For Canadian and Mexican professionals performing certain kinds of work, TN visas under the North American Free Trade Agreement.
  • For intra-company transferees, L-1 visas. If an organization has foreign operations, this visa permits employees to transfer to the U.S.-affiliated company in a similar position if they have worked abroad for the foreign parent, subsidiary or affiliate continuously for at least a year within the preceding three years as an executive or manager or in a specialized-knowledge capacity.
  • If the employer is enrolled in E-Verify and the individual has a degree from a U.S. college or university in a science, technology, engineering or math field, the optional practical training extension.
  • For those who may qualify under extraordinary ability criteria, the O-1 visa.
  • For nationals of Australia, the E-3 visa.
  • For nationals of Chile or Singapore, the H-1B1 visa.
  • For essential employees if the company and foreign national share the same nationality, the E-2 visa.
  • For those with F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training.
  • For individuals entering a structured training program, the H-3 visa.
  • For individuals who can be categorized as an exchange visitor, the J-1 visa.

If there’s time, an employer might pursue an employment-based green card on behalf of a worker. "Pursuing a green card for someone not selected in the H-1B lottery can be a viable option, but it will depend on many factors," said Rob Neale, a partner in the Seattle and Portland, Ore., offices of Fisher & Phillips. "These factors include, but are not limited to, the individual’s present situation, the applicable immigrant visa quota they would fall into, their country of birth and the overall green card strategy employed."

Concurrent employment is another option. Under H-1B program rules, foreign workers can be employed by both a cap-subject employer and one that isn’t, such as a university or research institution. As long as one employer is cap-exempt, the worker will not count against the cap.

Reform: No Time Soon

Legislation to raise the H-1B cap—or make it subject to market demand—is not expected until after a new U.S. president takes office in 2017 at the very earliest. "Immigration is hotly debated every day in the presidential elections, but we don’t anticipate any legislation this year that would give employers better access to this talent," said Rebecca Peters, director of government affairs at CFGI.

Some candidates on the 2016 presidential campaign trail have cited the program as a way for U.S. employers to undercut U.S. workers. Recently introduced bills follow that tack and propose changes to the program such as more-restrictive recruitment requirements and a preference scheme for allocating visas which favor foreign graduates of U.S. universities.

Visanow’s Burke suggested, instead, raising the cap, prioritizing companies that are hiring directly and penalizing those companies that are found to abuse the program. “Additionally, the program could focus on geographic areas of economic need or particular industries of national importance, such as clean energy, health care and cybersecurity,” he said.

The receipt of 236,000 petitions at the inception of the annual filing period for H-1Bs “demonstrates the current quota system is broken,” said Elizabeth Espin Stern, a partner in Mayer Brown’s Washington D.C. office, and leader of the firm’s global mobility and migration practice. “It creates a perverse incentive for employers with high-volume needs to file more visas than needed simply to beat the odds of selection in a random lottery. If the quota were refined to adjust based on actual demand, in the way the Senate bill on immigration reform contemplated in 2013, employers could in fact use the H-1B program the way it was intended, adding talent on an individualized basis as the need arises throughout the year, rather than front-ending a high volume of potential candidates in five working days in April.”

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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