Happy H-1B Cap Season!

Happy Cap Season!  That’s right, Happy Cap Season! 

For some, these words mean absolutely nothing, but for thousands of employers and potential highly skilled, foreign national workers in the U.S. and around the world, Cap Season is full of hope, fraught with anxiety, and colored by extreme frustration with the current annual limits on H-1B visa numbers.

“H-1B cap season” refers to several months leading up to April 1 each year.  This is the date when U.S. employers will submit between 100,000 and 200,000 H-1B visa petitions on behalf of potential employees to the U.S. Citizenship and Immigration Service (USCIS) in the hopes that their petition will be selected as one of the lucky 85,000 petitions to actually receive an H-1B visa number.

Some will prevail! These fortunate employers will have their H-1B petitions accepted and approved by USCIS and can bring on the professional worker that they desperately need to teach in their school, design their software application, engineer their oil pipeline, or balance their budget.  Of course, these employees will not be able to start employment until the beginning of the next Fiscal Year, on October 1, but alas, this is victory under the current H-1B framework and cap set by the U.S. Congress.

Others will fail… These unlucky employers will have their H-1B petitions rejected by USCIS for the year.  They won’t be bringing on their much need employee in 2015.  These employers will wait until Cap Season next year and can try again, with a target start date for their professional employees on October 1, 2016.  

Congress has set an annual limit on H-1B visas for each fiscal year.  Currently, there are 65,000 H-1B visa numbers for employees with a Bachelor’s degree and an additional 20,000 H-1B visa numbers for those with a U.S. Master’s degree.  In recent years, these visa numbers have been exhausted up on the very first day that H-1B petitions can be filed, six months prior to the start of the fiscal year on October 1, April 1.  Indeed, on April 1, 2014, the first day of filing for fiscal year 2015, USCIS received approximately 172,500 petitions.  This year is expected to follow suit.

This means that right now, employers across the country are strategizing about not only their immediate needs for high-skilled foreign workers, but anticipating their potential hiring needs for these workers through the next year, because once the H-1B Cap passes them by, they must wait until the next fiscal year – October 1, 2016 to bring on new H-1B employees.

In recognition of the dearth of H-1B visa numbers and its negative impact on economic growth, this month Utah Republican Senator Orrin Hatch, Minnesota Democratic Senator Amy Klobuchar, Florida Republican Senator Marco Rubio, Delaware Democratic Senator Chris Coons, Arizona Republican Senator Jeff Flake and Connecticut Democratic Senator Richard Blumenthal introduced the bi-partisan Immigration Innovation Act, dubbed the “I Squared Act.”  The I Squared Act would increase the number of H-1B visas available each year to as many as 195,000 annually.

The I Squared Act makes many necessary changes in the area of business immigration. Until the U.S. Congress passes much needed immigration reforms, many employers will languish, unable to secure the highly skilled employees they need.