AUTHOR:  Davis C. Bae.

The USCIS announced on April 8, a week after it began accepting H-1B petitions, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. It received approximately 124,000 H-1B petitions, including petitions for the advanced degree exemption. This likely will mean that more than 40,000 applications will be rejected. Employers will not be able to obtain new H-1B visas for employees until October 1, 2015. (The H-1B quota generally does not affect current H-1B status holders who are being sponsored by a new employer.)

While the demand for H-1B visas is generally a strong indicator of the health of the U.S. economy, this does not help employers requiring qualified employees. Employers with rejected petitions will be scrambling for other options for their employees and candidates, many of whom are working under a different but expiring visa category.

Employers can look to other visa categories and solutions to extending work authorization.  Individuals from certain countries may be eligible for professional visa categories that mimic the H-1B. For example, Australians can qualify for E-3 visas, while Singaporean and Chileans can qualify for H-1B1 visas. Mexican and Canadian citizens may qualify for certain professional category positions under the TN category.

In addition, employers who utilize E-Verify may be able to extend the work authorization of F-1 students for an additional 17 months if the employee is a graduate of a STEM (Science, Technology, Engineering or Math) program. Lastly, other categories, such as the O-1, P-1, L-1, E-1/2 and B-1, may help employers bridge the H-1B visa shortage.

Employers are encouraged to consult their immigration counsel at Jackson Lewis to determine if one of these solutions is appropriate. The H-1B shortage highlights the need for immigration reform that supports our rebounding, but fragile, U.S. economy.