After a rough winter here in New England, it seems that spring is finally on the horizon! H-1B cap season is in full swing. It is anticipated that USCIS will receive even more H-1B petitions than last year (when it received 172,500 petitions) for the available cap numbers - 65,000 new  H-1Bs are available beginning April 1 for an October 1 start date, with an additional 20,000 available for individuals with an advanced degree from a U.S. institution. If you or anyone you know may be seeking an H-1B prior to October 1, 2016, please contact our office as soon as possible. All cap-subject petitions must be received by USCIS between April 1 and April 7 in order to be considered in the computerized lottery for the FY 2016 H-1B cap.

Is there any hope for an increase to the H-1B cap?

Each year, there are typically a few bills proposed in the House or Senate to increase the cap. Unfortunately, they have not progressed past committees to come to a vote. In January, a bipartisan bill, the Immigration Innovation Act (I-Squared) of 2015, was reintroduced in the Senate. The bill seeks to amend the cap to change each year based upon economic factors and usage. While we can hope that this bill or something like it might be brought to a vote during this session of Congress, history has shown that this is unlikely.

Alternatives to the H-1B

Once the FY2016 cap has been reached, no new cap-subject H-1B petitions can be filed until April 1, 2016, for an October 1, 2016 start date. However, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, including petitions to:  

• Extend the amount of time a current H-1B worker may remain in the U.S.;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers;
• Allow current H-1B workers to work concurrently in a second H-1B position; and
• Allow individuals to work for a cap-exempt institution, such as a university, teaching hospital, or non-profit or governmental research organization.

If a candidate is not eligible for an H-1B based on the above, some other visa options may include:

• Country-specific work visas may be available depending upon the individual's country of birth (e.g. Canada, Mexico, Australia, Singapore and Chile) and background.
• If an individual is completing a program of study in F-1 status, s/he may be eligible for 12 months of work authorization via Optional Practical Training (OPT). F-1 students with degrees in a Science, Technology, Engineering or Math (STEM) field may be eligible for up to 29 months of OPT.
• Spouses of L-1 and E workers and some H-1B workers (described in more detail below) are eligible for work authorization.