The H-1B visa category permits U.S. employers to employ foreign workers in "specialty occupations." These are typically highly skilled workers with a minimum of a bachelor’s degree or its equivalent.
Each fiscal year there is an annual cap of 65,000 H-1B visas available. The annual cap applies only to new H-1B petitions and does not include extensions for existing H-1B workers or when an existing H-1B worker changes employers.
The initial filing date for new H-1B petitions (i.e., petitions that are subject to the annual cap) is on or around April 1 for consideration in the next federal fiscal year’s annual cap. The earliest start date for any cap-subject H-1B petition is Oct. 1, the first day of the federal fiscal year. All H-1B petitions are submitted to the U.S. Citizenship & Immigration Services, or USCIS.
Before the recession began in 2008, it was not uncommon for the full annual cap of H-1B visas to be reached within the first few months (or sometimes even weeks) after the April 1 filing date. However, by the start of the 2009 fiscal year there was a noticeable drop in the number of H-1B petitions being received by Citizenship & Immigration Services. For instance, during the 2009 fiscal year, the H-1B annual cap was not reached until January 2009, almost 10 months after the initial filing date. This trend continued during the 2011 and 2012 fiscal years. The annual H-1B cap was not reached until Jan. 27, 2011, in the 2011 fiscal year and Nov. 23, 2011, in fiscal 2012.
However, current trends demonstrate a substantial increase in the number of H-1B petitions being received by USCIS. As of May 18, USCIS has already received more than 42,000 H-1B petitions subject to the current 2013 fiscal year annual cap. This is more than double the number of petitions USCIS had received through the end of May 2010 (19,600) and nearly triple what the agency had received through early June 2011.
The 2012 increase suggests that the H-1B program is once again being used at pre-recession levels.
This marked increase in the number of H-1B petitions is both good news and bad news for U.S. employers interested in using the H-1B program.
The good news is that this increase is a further indicator that the U.S. economy is improving and remains globally competitive. Because of the legal and government costs in sponsoring foreign workers, employers are often reluctant to take on the paperwork required to file an H-1B petition in a weak economy. However, as the economy begins to slowly regain its strength, it appears that U.S. employers are once again feeling more confident and willing to hire foreign specialty workers. This also may indicate increased activity in technology-based industries, as historically a large percentage of H-1B petitions are submitted on behalf of specialty workers in computer-related occupations.
However, the bad news is that this also indicates that U.S. employers interested in sponsoring a foreign worker for the H-1B program will need to adequately plan in advance of the April filing date to ensure that their petition is properly filed before the annual cap count is reached.
If filing trends continue, it would be safe to assume that the full annual cap of H-1B visas, including those categorized as "Master-Cap," which provide for an additional 20,000 H-1B visas, will be reached much sooner than in recent years. This means that employers will need to have H-1B petitions adequately prepared and ready to file before the initial April filing date and will not have the luxury of waiting to file later in the year.
(George Ernst specializes in immigration law at the firm of Mitchell Williams Selig Gates & Woodyard PLLC, based in Little Rock. He can be reached at (501) 688-8862 or GErnst@MWLaw.com.)
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