The arrival of April marks the start of a new fiscal year when U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B nonimmigrant visa applications. Each year, USCIS approves 65,000 “regular cap” H-1B applications and 20,000 “advanced degree exception” H-1B applications. USCIS also processes an unlimited number of applications that are classified as “cap-exempt.”
The H-1B visa program is important to U.S. companies, research firms and universities that employ foreign workers in specialty occupations. These require theoretical or technical expertise in specialized fields, and include scientists, engineers and computer programmers. Individuals in specialty occupations must have at least a bachelor’s degree or equivalent or have duties that are so specialized and complex that the knowledge required for the job is comparable to having a bachelor’s degree or higher. Individuals approved under the H-1B advanced-degree exception cap must have at least a master’s degree from a U.S. institution of higher education.
The speed at which the USCIS’s annual H-1B quota is met is considered one indicator of whether U.S. companies are confident about hiring new employees for the coming year. During a down economy, the cap season can stay open as late as December or January. In fiscal year 2011, USCIS did not reach its H-1B quota until November.
This year, USCIS received 124,000 H-1B visa applications by April 5, 2013, and some analysts hope this is evidence of improved employer confidence. Because only 85,000 cap-subject applications could be approved for fiscal year 2014, more than 39,000 H-1B applications were rejected. USCIS used a computer-generated lottery system to select which petitions would be reviewed and which petitions would be rejected.
While this is good news for the U.S. economy, it is bad news for the many companies that were denied petitions for new H-1B workers. Fortunately, some types of employers and some existing H-1B workers are exempt from the H-1B cap, and USCIS will continue to accept and process petitions received from these employers and
individuals.
Certain amended applications for current H-1B workers will not be counted toward the annual H-1B cap, including applications (1) to extend the amount of time a current H-1B worker may remain in the United States, (2) to change the terms of employment for a current H-1B worker, (3) to allow a current H-1B worker to change employers, and (4) to allow a current H-1B worker to work concurrently in a second H-1B position.
The annual H-1B cap also does not apply to certain institutions of higher education, nonprofit research organizations and government research organizations. These institutions and organizations are exempt from the H-1B cap and can submit an H-1B visa petition any time during the year. To qualify as an “institution of higher education,” an organization must be a public or nonprofit institution, award a bachelor’s degree or educational credits that count towards a bachelor’s degree, be accredited by a nationally recognized accrediting agency or association, and require that students be graduates of a state authorized school that provides secondary education or its equivalent.
USCIS will also recognize as cap-exempt any nonprofit entity that is connected or associated with an institution of higher education. To qualify, the nonprofit must have shared ownership or control with the same board or federation operated by the institution of higher education, or be attached to an institution of higher education as a member, branch, cooperative or subsidiary.
Finally, some contractors and vendors can file cap-exempt H-1B petitions on behalf of foreign workers who will work “at” a qualifying institution of higher education, nonprofit research organization, or government research organization. Thus, even though the worker is not directly employed by the qualifying institution, the worker can still be treated as cap-exempt when the employment “directly and predominately” furthers the essential purposes of the qualifying institution.
While the fiscal year 2014 quota was met in a brisk five days, some employers and existing H-1B workers can continue to file their H-1B cap-exempt applications with USCIS. For these employers and individuals, the H-1B visa process is a continuous, year-round process. If you’re not one of these lucky ones, it’s never too early to start thinking about next year’s fiscal year 2015 cap season. Preparing an H-1B application packet can be a lengthy process, and just like tax season, waiting until March to start is never a good idea. Early preparation and prompt filing will give your H-1B petition the best chance it has to be accepted in the USCIS lottery.
Doug Martin and Martha Alexander are attorneys with the Lexington law firm of Sturgill, Turner, Barker & Moloney, PLLC (www.SturgillTurner.com).