The H-1B nonimmigrant visa category allows U.S. employers to hire a foreign national as a worker in a specialty occupation or as a fashion model of distinguished merit and ability.
A specialty occupation is defined as a position that requires a “theoretical and practical application of a body of highly specialized knowledge.” This means that the position must require at least a bachelor’s degree or its equivalent, and the foreign worker must possess at least a bachelor’s degree or its equivalent.
Every fiscal year, a limited number of H-1B visas are available. This limit is called the H-1B visa cap. Under this cap, 65,000 H-1B visas are available per fiscal year. For practical purposes, however, the number is 58,200 because 6,800 of these visa numbers are reserved for Chilean and Singaporean nationals under Free Trade Agreements.
An additional 20,000 H-1B visa numbers are also available under an exemption for graduates of a U.S. college or university with a master’s degree or higher. Cap-subject H-1B petitions become available each year on Oct. 1. They can be filed up to six months in advance, beginning April 1 each year. After the H-1B cap is reached, no foreign national can obtain an H-1B visa until the following fiscal year unless the foreign national has already been counted toward the cap, or the new employer is exempt from the H-1B cap (for example, certain hospitals, colleges, and universities).
Historical data regarding the H-1B cap can serve as an economic indicator. For example, for the 2008 and 2009 fiscal years, at the height of the bull market, the H-1B cap was reached in the first day or week. In contrast, for the 2010 fiscal year, after the market crash, the H-1B cap was not reached for more than eight months, until Dec. 21, 2009. More recently, as the economy has improved, for the 2014 fiscal year, the U.S. Citizenship and Immigration Services (USCIS) reached the cap within one week.
For the coming 2015 fiscal year, analysts expect the H-1B demand to remain high. Because the H-1B cap has been reached quickly in the past, the USCIS has established procedures when the agency receives more H-1B petitions within the first week than numbers under the cap. In that case, the USCIS conducts a computer-generated randomly selected lottery. Last year, over 120,000 cases were received within the first week. Those with U.S. master’s degrees have an advantage in this lottery system, as they are included in both the lottery for the 20,000 U.S. master’s exemption and then again in the regular H-1B lottery, if necessary.
Given the demand for H-1B visas, calls for reform of the H-1B program have increased. For example, H-1B reform was included in the Immigration Innovation Act of 2013. If the act had passed, it would have increased the H-1B cap to 115,000 and created a market-based H-1B escalator, which would further increase the cap numbers if the cap is met within specific time periods. Nevertheless, as it is not clear whether immigration reform will pass Congress (and, if passed, will include H-1B reform), companies must continue working with the existing structure.
Those in need of H-1B sponsorship could include college graduates in the U.S. on student visas (F-1 and J-1) or foreign nationals outside of the United States. Many rules regarding travel and work authorization apply to these groups while they await Oct. 1. Thus, U.S. companies wishing to hire foreign nationals should begin considering the upcoming H-1B season, as the annual H-1B contest is fast approaching. •
Megan Naughton is the head of the Immigration Practice Group at Robinson & Cole in Hartford, and Joshua Mirer is co-chair of the Immigration Practice Group. Both of their practices focus primarily on U.S. immigration law, focusing on business immigration. Lauren Sigg is an associate at the same firm who also focuses on immigration law.