H-1B Visa News Flash

Major Changes to the H-1B Program: Cap Exceeded Based on New H-1B Registration Lottery System!

For the eighth year in a row, the 65,000 cap on H-1Bs available during the Fiscal Year (October 1, 2020, to September 30, 2021) was exceeded before the end of the Fiscal Year (an H-1B application can be filed up to six months prior to the intended start date). However, 2020 was the first year USCIS used a new H-1B registration lottery system to select registrations, which enabled those selected to submit an H-1B petition. USCIS received approximately 275,000 H-1B registrations during the registration period in March of 2020. On March 31, 2020, USCIS used a computer-generated random selection process (commonly known as a "lottery") to select a sufficient number of registrations needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. USCIS conducted the selection process for 65,000 cap first. All advanced degree registrations not selected were then included in a second lottery for the 20,000 advanced degree limit.

Please click here for more information about the new H-1B registration lottery system.

 

What is the H-1B cap?
 

There is a "cap" on the number of H-1Bs available every fiscal year (October 1st to September 30th of the following year). There are 65,000 H-1Bs available to anyone who qualifies, and an additional 20,000 H-1Bs available only to those with an advanced degree from a U.S. educational institution. Since an H-1B petition may only be filed if selected in the registration lottery in March, it is crucial to plan ahead in order to be ready to submit registrations for anyone subject to the H-1B cap. 

 

Who does the H-1B cap affect?

 

Given that the total H-1B cap is only 85,000, managers, recruiters, and human resource departments planning to bring a foreign national from overseas to work in the United States on an initial H-1B visa need to be aware of the H-1B cap. Additionally, the H-1B cap also affects foreign nationals in some other nonimmigrant status such as B, F, J or H-4 who request a change of status to H-1B.

Who is not affected?

 

The H-1B cap does not affect foreign nationals currently in H-1B status who need to file an extension of status or change of employer. Further, foreign nationals seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations will continue to be exempt from the H-1B cap.

 

Other H-1B changes were implemented by the H-1B Visa Reform Act of 2004. These provisions include the additional requirements that H-1B "dependent" employers are required to meet, along with the Labor Department's expanded investigatory authority to investigate possible H-1B violations without first having to wait for a complaint to be filed. 

Additionally, the H-1B Visa Reform Act exempts from the H-1B cap the first 20,000 beneficiaries who have earned a Master's or higher degree from a U.S. institution of higher education. After those 20,000 slots are filled, USCIS is required to count those cases against the 65,000 cap for the remainder of the fiscal year. 

The H-1B Visa Reform Act also implemented two additional filing fees. The first fee is used by the Department of Labor to administer programs that involve the training and education of U.S. workers. Petitioners who employ more than 25 full-time employees must pay a fee of $1,500; petitioners who employ 25 or fewer full-time employees may submit a reduced fee of $750. Certain types of petitions are exempt from the new $1,500 or $750 fee. The $1,500 or $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004. 

The second fee is a "Fraud Prevention and Detection Fee" of $500 which must be paid by all petitioners seeking a beneficiary's initial grant of H-1B or L nonimmigrant classification, or those petitioners seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend the status filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The $500 fee applies to all petitions filed with USCIS on or after March 8, 2005.

 

How did this situation arise?

 

In 1990 Congress imposed a numerical cap on the number of H-1B visas issued each fiscal year. The first cap set H-1B numbers at 65,000 annually. In the thriving economy of the late 1990s, the cap was prematurely reached in FY 1997, FY 1998, FY 1999, and FY 2000. Once a fiscal year's cap was reached, all additional H-1B petitions were returned until a new fiscal year began, thus causing significant strain on U.S. businesses. To alleviate this problem, Congress raised the fiscal year cap to 115,000 for FY 1999 and FY 2000, and then to 195,000 for FY 2001-2003. However, barring Congressional action, the cap will remain at 65,000.

Given the situation, it is crucial that you act now! There are several things you should be doing today to ensure that you will be able to hire the employees you need. Please contact us immediately to discuss the best strategy for your company and obtaining H-1B Visas. Savitz Law in Boston specializes in business immigration law.