Reuben S. Seguritan

H-1B Processing After Cap is Reached

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The US Citizenship and Immigration Services (USCIS) recently announced that the H-1B cap for fiscal year 2017 has been reached. Over 236,000 petitions were received during the filing period that ended on April 7.

It conducted a computer-generated random process or lottery on April 9 to select the petitions that met the 65,000 cap for the general category and 20,000 for the advanced degree exemptions.

The lottery for the advanced degree came first and those not selected became part of the random process for the 65,000 limit. All rejected petitions will be returned along with their filing fees.

The USCIS will continue to accept and process petitions that are filed to extend an H-1B status, to change the terms of employment of an existing foreign worker with the same US employer, to transfer an H-1B worker to another US employer and to allow current H-1B workers to work concurrently in a second H-1B position.

It will also accept cap exempt H-1B petitions such as those filed for alien workers who will work at an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, or a governmental research organization. Third party petitioners that are not qualifying entities may claim cap exemption if the beneficiary will work at a qualifying institution. 

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Meanwhile, the American Immigration Lawyers Association (AILA) has expressed concern over the huge disparity between the demand for alien skilled workers and the mandated cap that Congress has provided. AILA President Victor Pradis Nieblas said that “artificial limits established more than a generation ago are again hobbling the economic potential of this great nation.”

Nieblas further said “Why do we continue to artificially limit this program? In a reasonable system, market demand should factor into how many business visas are granted, and indeed, demand for H-1B visas slowed when the economy took a downturn. But each year that we cap these visas when demand outweighs supply, all we’re doing is creating obstacles to economic growth. We’re losing out on shared prosperity for no good reason.

“The United States is one of the most important economies in the world, but its full potential is going unrealized. We live in a wireless world, but our visa system is a relic from the days of dial-up modem. It’s long past time for Congress to lead on this issue and reform the H-1B program in a way that addresses the needs of American businesses, US workers and our economy. Congress must bring our immigration system out of the last century and into this one.”

The H-1B petition is used by most US companies to hire skilled alien workers to fill up skill gaps in the local labor supply. 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, go to www.seguritan.com or call 212- 695-5281.)

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