H-1B Visa Cap – Odds of Success and Alternatives for the Unlucky

This year, USCIS received enough applications to meet both the Regular H-1B Visa Cap of 65,000 and the Master’s Cap of 20,000 visas within the 1st week of filing.[1] For those who aren’t familiar with the H-1B, it is a highly sought after visa which allows U.S. businesses to employ foreign workers who have highly specialized knowledge in fields such as science, engineering, and computer programming. In total, more than 172,000 applications for the H-1B visas were received, a number far exceeding the 85,000 visas allocated by Congress.

Many consider what happens in the event of excess demand to be an extremely unfair process of elimination. A computer-generated process randomly selects the petitions to meet the caps of 65,000 visas for the general category and 20,000 visas under the advanced degree exemption. Petitions that aren’t selected are subject to a refund of their filing fees, unless a duplicate filing is to be found. Those individuals will have to wait an entire year to try again unless they qualify for another visa category.

So what exactly are the odds that one’s petition will be selected? With this year’s H-1B visa cap, the chances are about 50/50. However, the odds are slightly better for those who filed under the advanced degree exemption. Those with a U.S. Master’s Degree or higher essentially receive two chances to receive the visa, first under the selection process for the advanced degree exemption, and then – if they don’t get selected – they get a second chance in being put into the general category lottery. Note that this is just an estimate – any given individual’s odds could in reality be better or worse since it is not known how many of the +172,000 applications fell under the advanced degree exemption. After 20,000 advanced-degree petitions are counted, there are about 152,000 petitions remaining for 65,000 spots. This means that there is about a 43% chance of the remaining petitions to be chosen for processing.

Given the excess demand for H-1B visas, many individuals, especially local corporations and industry groups, are continually pushing to expand the program. They argue that there is a shortage of IT workers and that foreign employees are important in maintaining the U.S.’s technological edge. The importance of immigrants in the growth of our country’s technology sector is evident; nearly half of the Silicon Valley startups have had an immigrant founder or co-founder.[2]

Companies such as Yahoo, Cisco Systems, NetApp, Hewlett-Packard, and others have met with members of Congress to discuss H-1B visa issues.[3] As previously discussed on this blog, the Senate has already passed a bill that would increase the number of visas to between 115,000 and 180,000 a year, but the House has yet to act in agreement with this proposal. It has been politically difficult to produce results, especially with proponents arguing that H-1B expansion would hurt U.S. workers by potentially reducing wages and job opportunities. From the looks of it, a long road lies ahead before these issues are resolved.

If you aren’t chosen to receive a H-1B visa, there’s no need to panic. There are alternative options that employers can engage in. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico to work in the U.S. in prearranged business activities for U.S. or foreign employers. The intra-company transferee (L-1) visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S. Lastly, the O-1 visa allows individuals with extraordinary abilities or achievements in the sciences, arts, education, business, or athletics to come to the U.S. Contact an experienced employment immigration attorney for more information on potential alternatives to the H-1B visa.

[1] “USCIS Reaches FY 2015 H-1B Cap.” U.S. Citizenship and Immigration Services: April 07, 2014, available here.

[2] “H-1B Visa Cap Applications Show Need for Immigration Reform.” Darrel M. West, Brookings TechTank: April 16, 2014, available here.

[3] “H-1B visa cap reached after just five days as valley executives lobby to expand the program.” Steve Johnson, Mercury News: April 07, 2014, available here.

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