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No More H-1B (Skilled Worker) Visas Until Next Year For Most Applicants

By all accounts, the US economy is slowly but surely becoming stronger. And the most recent developments in US immigration for skilled workers squarely confirm this.

On 1 April 2013, the US Citizenship and Immigration Services (USCIS) began accepting H-1B (Skilled Worker) visa petitions for Fiscal Year 2014. For an overview of the filing of H-1B visa petitions, please read this earlier blog.

Five days later, on 5 April 2013, USCIS announced that the number of petitions it received outnumber the available H-1B visas for the following year. In such situations, USCIS holds a 'lottery'. All H-1B visa petitions received between 1 and 5 April 2013 will participate in the lottery.

How does the lottery system work?

Advanced degree petitions (US Masters/ PhD degree or its foreign equivalent)

The H-1B visa programme allocates up to 20,000 visas to individuals with advanced degrees where a higher education level is required in order to perform the job at hand. As of yet, USCIS has not published information about how many advanced degree visa applications it has received. If those filed in the first five days number more than 20,000, USCIS will first hold the advanced degree petitions lottery. This is accomplished through a computer generated process which randomly selects the required number of petitions. The 'winning' petitions are not automatically approved; rather, they are H-1B petitions that are given further consideration by USCIS to determine whether the visa requirements are met.

If not selected in the lottery, the advanced degree petitions get 'two bites at the apple' since such petitions are automatically entered into the second H-1B lottery, discussed below.

H-1B petitions requiring a US Bachelor's degree (or its foreign equivalent)

The petitions requiring the equivalent of a US Bachelor's degree, as well as any 'unsuccessful' advanced degree petitions discussed above, are entered into another lottery to select the required number of H-1B petitions, corresponding with the number of available visas. The selected petitions will be further examined by the USCIS to ensure they otherwise meet the requirements for the issuance of an H-1B visa.

What happens to petitions not selected by the lottery?

The petitions not randomly selected, even though timely filed and meeting all H-1B visa requirements, will be rejected. This means that skilled foreign workers and their US employers will have to wait another year, until 1 April 2014, to file an H-1B visa petition. If successful, the earliest employment start date would be 1 October 2014.

What options are there for allowing foreign employees to work in the USA?

Some H-1B (skilled workers) petitions are not subject to the numerical cap. This means that, even though all capped H-1B visas for FY 2014 have been exhausted, an H-1B visa petition can still be filed if certain requirements are met. For instance, one can still file an H-1B specialty occupation visa petition if the employer is a qualifying institution of higher education, or a non-profit entity affiliated or related to an institution of higher education, or a qualifying non-profit research organisation. Additionally, if fewer than 20,000 advanced degree H-1B petitions were filed, it will still be possible to file petitions under this category until the maximum permitted number is reached.

Most importantly, foreign workers and their employers may be able to benefit from other US work visas that do not limit the total number of visas which can be issued each year, such as the L or the E visa.

Want to explore your options to work in the USA? Contact the firm's US immigration lawyer in London to discuss your US visa options today.