The registration and random selection period for new H-1B visas under the fiscal year 2021 quota limitation is over.
On March 31, 2020, the US Citizenship and Immigration Services (USCIS) completed the random selection of new H-1B registrants and updated their online database for employers and attorneys listing selections.
USCIS now needs to receive, starting April 1, 2020, the Department of Labor certified labor condition application and visa petition for each selected registrant within 90 days or less. The agency has not announced any extension of this deadline in response to COVID-19 pandemic. While USCIS has announced extensions of deadlines in many other situations and there remains the possibility that this deadline too might be extended in the future, it is best to prepare and file well before the current deadline.
H-1B QUOTA BACKGROUND
The H-1B is one of the most commonly used visas for US employers of foreign professionals. In 1990, the US Congress, for the first time, imposed quota limits on the number of new H-1B visa petitions that the government would grant each fiscal year, setting the number at 65,000.
Quota limits were not reached in the years immediately after 1990, but began to be a problem in the mid-90’s as the US economy expanded and the demand for foreign professionals by US employers increased. Congress increased the supply of new H-1B visa petitions to meet the country’s needs, but only temporarily. By the time the temporary increase expired, the US economy was suffering from the tech bubble burst of 2000 and the aftermath of September 11, 2001. New H-1Bs remained readily available.
However in 2004 quota limits on new H-1Bs began to be a problem again. On October 1, 2004, the very first day of fiscal year 2005, the FY05 quota was exhausted. Congress responded by creating an additional 20,000 slots but limited their availability to those with graduate degrees from US universities.
The increase helped, but was insufficient to meet the needs of US employers. In each of the subsequent fiscal years, the quota was exhausted more and more quickly. For fiscal year 2008, more petitions were received on the first day than the quota permitted, and the same was true in fiscal year 2009.
Fiscal years 2010, 2011 and 2012 broke with the historical pattern. Although the quota was used up, the same economic climate that limited job opportunities generally also impacted job opportunities for H-1B workers. As a result, for those fiscal years, USCIS continued to accept new H-1Bs until December, January and November, respectively.
By fiscal year 2013, the historical pattern resumed and US employer demand for new H-1B workers far outstripped the limited supply allocated by Congress. For many years now, the number of petitions received in the first five business days was so much greater than the quota that the likelihood of selection was less than 50 percent, making it hard for employers and foreign professionals to plan for the future.
For fiscal year 2021, USCIS implemented a new registration system that required employers and attorneys to create accounts and register prospective H-1B employees in March 2020. The agency’s random selection was done from this pool of registrants.
The limited supply of new H-1B visas is inadequate to meet demand. The problem that we have experienced for more than a decade continues to this day, with Congress failing to take the action needed to increase the number of new H-1B visa petitions to meet the needs of American employers. The result has been a shifting of many jobs to other countries, with resulting loss of revenue and business opportunity for the US.
WHAT TO DO NOW
Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals.
‘OLD’ H-1BS ARE QUOTA-EXEMPT
Note that only new H-1B petitions are subject to quota limits. A foreign professional granted H-1B status under the quota already is generally exempt from quota limits. This can be true if changing employers or changing from other visa status. For example, a former H-1B visa worker attending US university on F-1 student visa status may be eligible to return to H-1B status without being subject to new quota limits.
Petitions by some employers are exempt. These are generally government, academic institutions and related research organizations.
OTHER VISAS AVAILABLE
There are a number of other visas that US employers may consider as alternatives to the H-1B.
- F-1 STEM OPT. Some foreign students may be able to extend their pre- or post-graduation employment authorization. The list of STEM degrees that offer the chance of an additional 24 months of post-graduation employment authorization beyond the normal 12 months was recently expanded.
- Free Trade Agreement TN/H-1B1/E-3. Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits available by treaty only to citizens of those countries.
- H-3/J-1. Training visas are a solution for some. While H-3 authorize only incidental productive work for what is primarily classroom-type training, the J-1 permits on-the-job training involving regular productive work.
- Extraordinary-Ability Nonimmigrants. For individuals who can document their extraordinary ability and have job offers using those skills, the O-1 visa is not subject to numerical limitations.
- EB1A Extraordinary-Ability Immigrants. Similar to the O-1, but without the requirement of a sponsoring employer.
- EB1B Outstanding Professors and Researchers Immigrants. Universities use this to sponsor qualified professors and researchers to immigrate. Other employers use this for qualified researchers.
- EB2 and EB3 Professional Immigrants. This is how employers sponsor most professionals to immigrate to the US.
There are many other nonimmigrant and immigrant visas that may be available. Immigrant visas are subject to quota limits based in part on place of birth, with people born in mainland China and India often experiencing longer waiting times. The requirements for each solution vary from the H-1B, so employers and foreign nationals are well advised to consult their Dentons attorney to determine eligibility for these benefits.
Quota limits in past years have driven the jobs offered by many employers offshore and this year is no exception. A number of the countries around the world where our law firm and clients do business have rules for the employment of foreign nationals that are as or even more generous than those offered by the US.
Employing a candidate abroad, rather than losing a needed skill set, is an option for many employers. Where proximity to a US facility is desired, employers often consider near-shoring in Canada or Mexico. Dentons is the world’s largest law firm and our global network of offices uniquely positions us to help guide employers through all of the options.
NEXT FISCAL YEAR
And there is always next year when the USCIS will begin to accept new H-1B registration for jobs starting October 1, 2021, under the fiscal year 2022 quota.