United States Citizenship & Immigration Services (“USCIS”) announced today that it has reached the congressionally mandated H-1B cap for fiscal year 2016.
By way of background, the USCIS issues H-1B visas to foreign workers serving in “specialty occupations at a professional level.” A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge, to be performed by a worker with at least the equivalent of bachelor’s degree in the field. Both the position to be filled and the foreign worker’s qualifications must meet the criteria for a specialty occupation.
The statute provides for an annual quota of 65,000 new H-1B visas that can be issued in any given fiscal year, which runs from October 1 to September 30. In addition, there is a separate quota of 20,000 H-1B visas per fiscal year for graduates of U.S. advanced degree programs, for a total of 85,000 H-1B visas. This notwithstanding, USCIS has already received more than enough petitions to meet the cap for fiscal year 2016. Because the annual quota was met within days of the first day of filing (April 1, six months before the start of the fiscal year), all petitions will be placed into a random computer lottery system. Only those petitions selected in the lottery will proceed to adjudication.
It is expected that more than half of all H-1B petitions filed by employers will be rejected due to the number of applicants as well as the haphazard lottery system. Affected foreign nationals whose petitions are not chosen will be unable to obtain an H-1B visa until the next fiscal year and may be required to forgo employment with employers and possibly leave the United States. In such instances, employers will need to consider alternative visas for affected employees.
