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Legal Update

US Government Announces It Has Completed Receipt of H-1B Cap Petitions, Leaving Many US Employers Unable to Hire Needed Talent

7 May 2014
Mayer Brown Legal Update

During the five-day window beginning on April 1, 2014, US Citizenship and Immigration Services (“USCIS”) received approximately 172,500 H-1B visa petitions, an increase of nearly 50,000 H-1B petitions received compared to the same period last year.

The H-1B visa category provides authorization to work in the United States on a temporary basis to foreign nationals in a specialty occupation. A specialty occupation is a professional-level position that requires a US bachelor’s degree or a foreign equivalent. Foreign nationals who have been sponsored for H-1B visas must be paid at or above the prevailing wage for their area of expertise in the geographical location where the H-1B visa holder will work. This requirement is intended to ensure that the wages of US workers are not impacted by the hiring of foreign workers.

Under current law, USCIS may approve no more than 65,000 H-1B visa petitions each fiscal year. An additional 20,000 H-1B visas are available to professionals who have earned a graduate degree from a US university or college. In light of H-1B visa demand greatly outpacing annual supply again this year, USCIS has randomly selected, in lottery fashion, the petitions it will accept and process.

On May 2, 2014, USCIS announced that it had completed notifying all US employers whose prospective H-1B employees had been selected for processing. Unselected H-1B petitions will be returned to employers in the coming weeks.

On the Horizon

Demand for highly skilled employees, especially those with degrees in science, technology, engineering and math (“STEM”), has exceeded the supply of H-1B visas for years, leaving US employers at a competitive disadvantage in the global marketplace. For this reason, many US employers have called on Congress to enact legislation to address their inability to hire highly skilled workers. The comprehensive immigration bill passed by the Senate last year (S. 744) would create market-based limits with a floor of 110,000 and a ceiling of 180,000 H-1B visas. The US advanced degree cap would increase from 20,000 to 25,000, but be limited to those awarded STEM degrees. Under proposed legislation introduced in the House (H.R. 2131), the H-1B cap would be increased to 155,000 and the advanced degree cap, also limited to STEM degrees, would be increased to 40,000.

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