H-1B Rejected?

Tens of thousands of employees sponsored by employers for H-1B work visas are awaiting news of whether they won or lost the lottery for the limited number of slots this year.  So far, only receipt notices and approvals have been issued for the winners, but no notices have yet been received by the approximately 87,500 who lost.  Employers and employees are left to wonder, unable to plan what to do next.

On April 10, 2014, USCIS announced that it had received a whopping 172,500 H-1B petitions for only 85,000 slots nationwide for the year.  The H-1B is the main work visa for our country in the professional worker category.  The exhaustion of the quota numbers in one week means that employers and employees will have to wait until April 2015 to file for one of the slots available for start dates in October 2015.  The losers will either need to leave the country, or find another option to stay and work.

Citizens of some countries are eligible for special kinds of visas (Australians have the E-3, Canadians and Mexicans have the TN, Chileans and Singaporeans have the H-1B1), and some employers are exempt from the cap entirely, such as institutions of higher education and non-profit entities affiliated with them, as well as non-profit research organizations.  Those who have previously been counted toward the H-1B cap, such as employees who hold H-1B status already and those who were granted in the past, are generally not subject to the cap.  But for those who have never been counted toward the cap and who have lost the lottery this year, the options may be limited.

F-1 students in Optional Practical Training (OPT) may work pursuant to that authority for 12 months following graduation, and if their degree is listed on the STEM List, they may be able to obtain another 17 months beyond that if the employer is an E-Verify Employer.  

The lack of notice to the losers of the lottery is concerning, as notice to employers was provided weeks earlier last year when the cap was reached also in one week.  The number of rejections is double that of last year, however, so the agency may be overwhelmed.  Hopefully, news will come soon, and employers and employees will be able to start planning.  Perhaps Congress will act to increase the numbers, as proposed in the Senate bill, S.744 which passed in bi-partisan fashion, but the House of Representatives must act.  

More and more American employers may find that the visa climate in the U.S. makes business too difficult, and move operations overseas where artificial visa quotas do not interfere with the free movement of top global talent.  As the Wall Street Journal has reported, Microsoft opened a Canadian operation to deal with the problem, and Apple has not brought engineering talent to work in the U.S. due to the visa restrictions.  After the H-1B rejections start flowing into the HR departments of companies around the U.S., perhaps more thought will be given to such actions by other companies, that is, unless Congress acts soon.