Alternatives In The Face Of No H-1B’s

Urban area

Donald C. Slowik
Slowik & Robinson, LLC
Columbus, Ohio

The FY 2013 H-1B Cap Went in Just Over Two Months

The current annual cap is 65,000, with up to 6,800 set aside for Chile and Singapore. On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.

The Demand for H-1B workers Consistently Outstrips Visa Supply and Is Increasing

Over the past decade, the demand for H-1B visas has fluctuated in response to both economic and political conditions. According to a July 2012 Brookings study, The Search for Skills: Demand for H-1B Immigrant Workers in Metropolitan Areas (see Appendix A), the trend at the national level has been one of growth, with the exception of significant declines after the collapse of the dot-com bubble in 2001, September 11, 2001, and the Great Recession starting in 2007. Over this period, there has been an average of 311,889 requests for H-1B visas, fluctuating from a 2003 low of 220,731 to a 2008 high of 404,907.

USCIS Denials of H-1B, L-1, and O-1 Petitions Have Been on the Rise

A February 2012 National Foundation for American Policy Brief (see Appendix B) reviewed new data obtained from USCIS and found that the agency had dramatically increased denials of L-1 and H-1B petitions over the past four years. The evidence indicates USCIS changed the standard for approving L-1B and other petitions in recent years, beginning in FY 2008 and FY 2009. In FY 2011, 63% of all L-1B petitions received an RFE and 27% were denied. The denial rates also increased for O-1A petitions.

With these trends in mind, what are the alternatives for a would-be H-1B worker who has been closed out of the cap? This article reviews various alternatives available with H-1B cap exemptions, nonimmigrant training visas, and nonimmigrant business/employment visas.


Conclusion

Any forward progress on the H-1B quota problem by Congress appears unlikely as of this writing. Despite the still shaky economic recovery, demand for H-1B visas is on the rise.

We will soon return to a situation of the cap being closed on the first day of the application period, with resort to an absurd lottery system to determine the “winners” and the “losers.”

In view of these trends, cap-subject aliens and employers cannot automatically assume that, if they just file their H-1B petitions fast enough, they will beat the H-1B cap. As part of the H-1B planning process, it is essential to review alternatives to the H-1B classification and have a backup plan in case the alien is closed out of the upcoming fiscal year cap.