H-1B Visas: What To Expect In 2015 - InformationWeek

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IT Leadership // Team Building & Staffing
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11/18/2014
08:46 AM
Kevin Casey
Kevin Casey
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H-1B Visas: What To Expect In 2015

Demand for new H-1B visas will continue to outstrip supply -- likely by an even wider margin -- in 2015. Here's guidance for employers and employees.

If recent history is a guide, here's one thing H-1B visa hopefuls can bank on in the coming year: The application window will be stuffed the minute it opens next April 1, and it will close in a matter of days, not weeks or months.

In 2013, US Citizenship & Immigration Services (USCIS) received 124,000 petitions for new H-1B visas, shuttering the filing period after one week. In 2014, USCIS received around 172,500 applications for new H-1Bs in the minimum five business days it must keep the filing period open. The window closed on April 7.

That's a jump of nearly 50,000 applications from the previous year and more than double the annual legislative cap of 85,000 available new H-1Bs, 20,000 of which are reserved for people with master's degrees or PhDs. (Some H-1B visas are exempt from the federal cap in certain circumstances, such as those for employees of universities or nonprofit groups.) Visas were then allotted via a computer-generated lottery system.

Expect demand to continue to outstrip supply -- likely by an even wider margin -- in 2015.

"There's been a marked increase" in new H-1B applications, Scott Fanning, an employment attorney with Fisher & Phillips, said in an interview. "It's our belief that it's just going to keep increasing exponentially."

[Where do L-1 visas fit into the picture? Read L-1 Visas: H-1B's Quiet, Powerful Cousin.]

There are multiple catalysts driving demand for new H-1Bs, but Fanning noted one is simply a byproduct of the limited supply: When a would-be H-1B holder doesn't get lucky in the lottery system, the only visible path to securing an H-1B visa in the near future is to try, try again in the following year. About 87,000 applicants didn't hear their number called in last year's lottery; many of them will likely try again in 2015, whether with the same prospective employer or a new one.

A related factor in rising demand: Employers who sponsor H-1B visas are bumping up the number of applications they file each year to mitigate the increased likelihood that some of their petitions won't survive the numbers game.

"Employers are increasing the number of applications they may be filing due to fear of the lottery," Fanning said. They are "bona fide applications; these are positions that, for some companies, they desperately need. Companies are filing more in the hopes of getting more approvals."

With an overall application success rate of less than 50% last year, some companies are effectively increasing their H-1B hiring goals, knowing that many would-be H-1B hires won't get visas.

Some H-1B employers are also speeding up their timelines, according to Fanning, applying sooner for new visas in certain scenarios. A common one: companies that hire international graduates of US universities under the Optional Practical Training (OPT) program for F-1 visa holders. OPT hires may work legally in the US for up to 12 months. In 2008, however, the federal government enabled extensions for an additional 17 months, or 29 months total, for students in science, technology, engineering, and math (STEM) fields.

"Even though they may have another two years left, or 17 months left, on OPT, they're going to accelerate the process and file for the H-1B now," Fanning said.

In the past, employers who hoped to retain OPT employees over the longer term on an H-1B visa typically waited until the allowable 29 months for STEM graduates were approaching their end. Now, more companies are applying for H-1Bs on behalf of recent graduates immediately, rather than waiting for the extension period. There were 92,465 F-1 visa holders participating in OPT in federal fiscal year 2010; roughly 10,000 of them were classified as STEM workers approved for the 17-month extension period, with the majority still working within the first 12-month period, according to Congressional Research Service data.

Fanning's phone -- and the phones of labor and immigration lawyers around the country -- will still ring with last-minute H-1B-related requests from employers each spring, but advance planning has become a de facto necessity as a result of stiffer competition for H-1B visas. Employers have always had to look ahead in terms of hiring -- the earliest date successful H-1B applicants can begin work in the US is Oct. 1 following the filing period, the first day of the federal fiscal year. But the demand spike, coupled with an increasing need for contingency planning in the event of unsuccessful applications, has forced an even longer view, Fanning said.

The process similarly favors the well-organized -- even for successful applicants, the paperwork burden can be intense, both in the initial application and in subsequent requests for evidence, USCIS audits, and other compliance matters. Such requests for evidence, in particular, have increased considerably in recent years.

"Enforcement has increased substantially in the past four years. It's not something that just happened recently in this past year," Fanning said. The spotlight shines brightest on any employers that are considered IT consulting firms, rather than companies using H-1B visas to fill internal, on-site positions. "Any kind of employer where they do consulting -- where there's not going to be working on site, where they're going to go to third-party sites -- those are carefully scrutinized [and] will get requests for evidence that you have to respond to voluminously in order to support it."

USCIS and other federal authorities have been cracking down on fraud in recent years. That effort is highlighted by

Kevin Casey is a writer based in North Carolina who writes about technology for small and mid-size businesses. View Full Bio
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