We are now in the midst of H-1B season. What April 15 is to accountants, April 1 has become for immigration lawyers. However, unlike April 15, April 1 is not a hard and fast deadline. Moreover, given the state of the economy, April 1 might not have the same meaning this year that it has for the past few years.
For the past few years, employers needing H-1B nonimmigrant visas to employ foreign nationals were forced to take a risk. Employers who prepared textbook perfect H-1B petitions, filed the very first day such petitions were accepted by U.S. Citizenship and Immigration Services, or USCIS, could not be certain of the success of these petitions. In fact, there was only a 50/50 chance that the petition would be adjudicated.
Why was there such a low probability of success? What made the H-1B such an iffy prospect? Well, as has been reported in many media sources, there has been a serious shortage of H-1Bs since fiscal year 2004, when the number of H-1Bs annually available was reduced from 195,000 to 65,000. In 2005, legislation added another 20,000 H-1Bs for those beneficiaries who had an advanced degree from a U.S. institution.
Even with these additional 20,000 H-1Bs, each year since the cap was reduced from 195,000, there has not been enough supply to meet demand. Since petitions can be filed up to six months prior to the start of the fiscal year, which begins Oct.1, USCIS had a sufficient number of petitions to meet the cap way before the fiscal year had begun. Employers may file — and were encouraged to file — as early as April 1, six months in advance of the intended start date. Last year, USCIS received about 160,000 H-1B petitions in the first week of April 2008. As a result, for the second year in a row, USCIS had to conduct a computer-generated random selection process to determine which of these 160,000 petitions would be adjudicated. This became known as the H-1B Lottery.
The reason for the high demand in the H-1B nonimmigrant visa category is because it is the only general purpose temporary employment visa. While there is an alphabet soup of nonimmigrant visas, not all authorize employment and those that do are fairly limited in scope. For example, there is the L-1 visa for intracompany transferees; the E treaty visa for those working for an employer of the same nationality (and that have a treaty with the United States); the O visa, for those who are extraordinary in their field of expertise; the R visa for religious workers; the P visa for performers, etc. Only the H-1B is available for a broad range of professional occupations and to a broader range of employers.
This year, however, the demand for H-1Bs may not exceed the supply. More employers are either laying off employees or maintaining staffing levels; few are hiring new employees. In addition, the congressional report on fraud in the H-1B category has resulted in USCIS taking a closer look at some petitions, thereby discouraging some petitioners. These factors create a window of opportunity for bona fide employers to file H-1B petitions without taking as much of a risk.
Certainly, there is no guarantee that the H-1B quota will not be met in the first week of April. Nor should employers hold off from filing by April 1 if possible. But barring a legislative increase in the number of H-1Bs available each year, this seems as good a time as there is likely to be to obtain an H-1B nonimmigrant visa. This is important to providing employers with the necessary latitude to hire the best candidate, thereby making them more competitive and revitalizing our economy.
Suzanne B. Seltzer is partner of Klasko Rulon Stock & Seltzer. She is a member of the National Coalition for Access to Healthcare, as well as co-chairwoman of AILA’s NY-NJ State Department of Labor Liaison Committee. Seltzer is a frequent speaker on immigration options available to international medical graduates and is the author of “Options for J-1 Clinicians: Expanded Use of the O-1 Visa.” Seltzer obtained her J.D. from Georgetown University Law Center, and her B.A. from the University of Pennsylvania.