On January 13, 2015, a bipartisan group of Senators lead by U.S. Senator Orrin Hatch (R- Utah)1 introduced the Immigration Innovation (“I-Squared”) Act of 2015. The I-Squared bill will increase the general cap on H-1B visas from 65,000 to 115,000. The bill also will allow the annual cap to increase in any fiscal year from 115,000 to 195,000, if so demanded by the market (e.g. when the H-1B petition filings exceed the cap).2
Will this bring relief before the H-1B filing season opens on April 1st? Maybe, but even if the I-Squared bill is approved by the Senate and House, and signed into law by President Obama, the new legislation may not resolve the H-1B cap problem, as this year’s demand is expected to exceed the proposed ceiling of 195,000 visas, and there will continue to be an H-1B lottery. Although, an increased cap will certainly increase the odds that your petition will be selected in the H-1B lottery.
So, what can employers do to prepare for the cap-subject H-1B filing season that opens on Wednesday, April 1, 2015, for fiscal year (“FY”) 2016, which commences on October 1, 2015?
- Identify cap-subject H-1B employees
Employers should immediately start identifying current and future employees who will need to be sponsored for new H-1B petitions. The H-1B is a non-immigrant classification used by a foreign national who will be temporarily employed in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Specialty occupations include: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, information technology, business specialties, accounting, and the arts.
- Be aware of key dates
It is likely that this year’s H-1B quota will be met within five business days of its opening on April 1, 2015, after which the USCIS will stop accepting new H-1B petitions until next year’s cap opens. Thus, H-1B cap-subject petitions should be mailed to the USCIS on March 31, 2015, for overnight delivery in order to arrive on the first date of filing to increase the chance of acceptance. This means that the employer’s Labor Condition Application (a pre-requisite to the filing of an H-1B petition) must be filed with the U.S. Department of Labor (“DOL”) by March 25, 2015 (preferably before), and that the employer must register with the DOL by March 20, 2015 (if the employer has not previously sponsored H-1B petitions). Thus, the H-1B process should be initiated without delay as it takes time for the employer and employee to gather the necessary information and documentation to prepare an H-1B petition package.
- Remember only non-exempt H-1B petitions are affected by the cap
Cap-exempt employers do not have to worry about H-1B quotas. They can sponsor employees year-round. These employers include: (a) institutions of higher education; (b) non-profit entities which are “related to” or “affiliated with” an institution of higher education; (c) non-profit research organizations; and (d) government research organizations. Physicians with J-1 waivers are also cap-exempt, as are current H-1B employees “porting” from the employment of a cap-subject U.S. employer.
- Cap-subject H-1B petitions not selected for the lottery will be rejected
In such cases employers will need to look at alternative visa options for the employee(s) that are unable to obtain an H-1B visa. The I-Squared bill is the first immigration legislation introduced in the 114th Congress and would bring welcomed reform for employers of highly-skilled foreign national workers in the United States, as it contemplates more than just raising the H-1B cap. If the House introduces similar legislation in the near future, it may be a sign that relief (via a joint bill) is its way for these valuable employees. Meanwhile, prepare for the upcoming H-1B filing season, which opens on April 1st, 2015!
1 Co-sponsors of the I-Squared Act of 2015 include U.S. Senators Amy Klobuchar (D-MN), Marco Rubio (R-FL), Chris Coons (D-DE), Jeff Flake (R-AZ), and Richard Blumenthal (D-CT).
2 It will also “uncap” the U.S. advanced degree exemption (for foreign nationals with a Master’s degree or higher from a U.S. University), which is currently limited to an additional 20,000 visas per year.