H1B cap reached

As expected, the United States Citizenship and Immigration Services (USCIS) announced on April 7 that it received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2015. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. Unfortunately, this means more than 50% of the petitions filed during the initial filing period will be rejected.

On April 17, 2014, USCIS announced that on April 28, 2014, it will begin premium processing for H-1B petitions subject to the fiscal year 2015 cap, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time. We had recommended to our clients that it did not warrant the substantial additional fee paid for “premium processing” as it did not increase the likelihood of their being selected in the “lottery” and that petition approvals would still not be effective until October 1, 2014.

THINGS MIGHT GET BETTER

On the same day the disastrous H-1B filing results were announced, the Department of Homeland Security (DHS) issued a press release which provided some positive news to spouses of H-1B visa holders (H-4’s) and entrepreneurs.

Under our current immigration laws, only spouses of “E” and “L” visa holders are allowed to work in the U.S. The press release indicated this would be extended to H-4’s, but unfortunately, the press release goes on to say that not every spouse of an H-1B visa holder would be allowed employment in the U.S., and that it will only authorize employment for spouses of “certain high-skill workers on H-1B visas” that have filed for extensions.

On May 6, 2014 DHS issued another press release clarifying which H-4 spouses would be eligible for the employment authorization documents. These are limited to those spouses who:

1. Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or

2. Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21 Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

The latter provision (2) applies primarily to foreign nationals who have PERM labor certifications which have been pending for at least one year. These provisions will apply primarily to Indians, Chinese and Filipinos who face longer quotas than nationals of most other countries.

Another proposal outlined in the press release is “Entrepreneur Pathways,” which is an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States. Previously, there have been proposals for a number of other changes in our immigration law which would provide special visas for entrepreneurs beyond those limited opportunities in the E non-immigrant visa category, (which are only for nationals of certain countries) and the EB5 immigrant visa category, where the minimum investment ($500,000 – $1,000,000) does not make sense for many “start-ups.”

We are hoping that a positive consequence of this year’s extremely high H-1B filings and the frustrations many prospective U.S. employers will express to their congressmen is that the government may increase the number of H-1B visas to at least the 195,000 level that we had until just a few years ago.

Contributed by Charles Goldsmith

| Nonimmigrant