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Business Immigration Zone (BIZ): Beating the Odds - The H-1B Lottery, the H-2B Cap, and Suspension of the H-2B Guest Worker Program

March 11, 2015

The United States is apparently adding jobs at its best pace in 20 years, according to new government data released last Friday. The U.S. added 295,000 jobs in February. And that was the 12th consecutive month in which the U.S. added more than 200,000 jobs. The headline unemployment rate is now 5.5%, the lowest level in six years, according to data released by the Department of Labor. This favorable economic news means that the U.S. demand for labor is high, and U.S. workers can become more selective in the jobs they seek and accept. It also means that there is an increased demand for the temporary employment visas that U.S. employers normally use to cover the gap when domestic labor supply sources are unavailable.

In the past weeks, this economic rebound has threatened to exhaust the temporary employment visas that employers rely on to meet labor needs. So the odds of obtaining temporary employment visas in today’s economy are less likely than in previous years. Hence, employers must successfully navigate those odds when applying for temporary employment visas at this time. BIZ offers a few recent immigration developments that employers should consider when planning labor solutions in this rebounding market.

The H-1B Cap Will Likely be Met in the First Week of April, 2015

U.S. businesses use the H-1B visa program to employ foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge, including, but not limited to: scientists, engineers, health care professionals, teachers or computer programmers. The current annual cap on the H-1B category is 65,000. Additionally, 20,000 H-1B visas are awarded to foreign individuals with advanced degrees. H-1B Petitions are normally filed on April 1st of each year. On April 10th of last year, USCIS announced that it had received approximately 172,500 H-1B visa petitions during the filing period which began April 1, 2014. This year, stakeholders project that more than 200,000 H-1B petitions will be filed during the filing period which begins April 1, 2015 – so the odds of approval are slimmer than in previous years. Accordingly, employers who apply for H-1B visas must remain cautiously optimistic due to the number of individuals competing for a limited amount of visas in this rebounding economy.

H-2B Visa Cap Met for First Half of Fiscal Year

The rebounding economy has already impacted the availability of H-2B visas. Employers generally use the H-2B guest worker program to temporarily hire unskilled foreign nationals to service seasonal, peak load or intermittent needs. There is a statutory numerical limit, or "cap," on the total number of aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). On January 26, 2015, USCIS received a sufficient number of H-2B petitions to reach the congressionally mandated cap on the total number of foreign nationals who may seek H-2B status for the first half of the 2015 fiscal year. This meant that employers with H-2B needs after January 26, 2015 are now without recourse in the H-2B program. Rather, they were required to seek H-2B visas in the second half of the fiscal year beginning April 1, 2015. But on March 4, 2015, USCIS announced that it had approved 14,740 H-2B petitions for the second half of the fiscal year. Hence nearly half of the H-2B visas available in the second half of the fiscal year were consumed before the second half began. Critically, it is currently unclear if employers will be able to compete for the remaining H-2B visa in light of the H-2B program suspension that was announced late last weekend.

H-2B Guestworker Program Suspended

On March 4, 2015, the federal district court in the Northern District of Florida vacated the Department of Labor's 2008 H-2B regulations on the ground that the DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Because of this decision, effective immediately, DOL can no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program. Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). DOL apparently is considering its options in light of the court's decision, but there has been no announcement as to when the program will resume normal operations. Likewise, as of 3/5/15, USCIS temporarily suspended adjudication of Form I-129 H-2B petitions while the government considers its options after the court order entered on 3/4/15, in Perez v. Perez. This means that employers who need H-2B guest workers in the second half of the fiscal year are presently without any remedy. Because demand for these particular temporary employment visa programs is so high, employers should remain cautiously optimistic when applying for temporary employment visas in this rebounding economy.