As predicted, more than half of the H-1B petitions filed during the first week of April 2014 will be returned without ever being reviewed by U.S. Citizenship and Immigration Services (USCIS). On April 7, 2014, USCIS announced that the fiscal year (FY) 2015 H-1B cap was reached. USCIS received about 172,500 H-1B petitions in total (including those falling within the U.S. Masters Cap) during the filing period that began April 1. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 U.S. Masters cap. USCIS conducted the selection process first for the U.S. Masters degree petitions. All U.S. Masters degree petitions not selected, then became part of the random selection process for the 65,000 limit.
By now, some of the applicants have already heard whether they have been selected by this random lottery – that their petitions have been “received” as within the H-1B cap. Especially compared to last year, USCIS has acted quickly in sending out “receipt notices” for those petitions that have been selected by the random lottery. All petitions filed with premium processing, for both general and U.S Masters cap, should have received a “receipt notice” if they were in fact selected by the random lottery. This past week, we just started to receive “receipt notices” in the mail for petitions filed with regular processing. It is true that until the filed petition is returned in the mail, it is not 100% certain that your petition did not make the lottery. However, if you have not heard by now, it is probably not looking too promising…
What about the petitions that have luckily been selected by the lottery and will now be reviewed by USCIS? What are the chances of an approval? Given past statistics released by USCIS, the trend is not in the applicants’ favor. USCIS is reviewing all petitions with greater scrutiny and overall approval rate is decreasing every year, especially for those non-computer related occupations. In particular, in its most recent report released in July 2013, USCIS reported that the number of H-1B petitions approved decreased 3% overall in FY2012. Furthermore, while the number of H-1B petitions approved for workers in computer-related occupations increased by 15%, the number of petitions approved for all other occupation groups combined decreased by 20%.
In fact, a recent report released by the Department of Labor (DOL) confirmed that computer related occupations still overwhelmingly dominate the H-1B filings. Specifically, in FY2014, computer related occupations made up about 70% of all Labor Condition Applications (LCAs) which must be submitted and certified by the DOL before any H-1B application can be filed with USCIS. Additional 5% of LCAs received by DOL comprised of non-computer related engineering occupations. Another 5% went to financial analysts/accountant occupations. The remaining 20% included all other occupations.
Such statistics attests to the growing trend of USCIS disfavoring non-computer, non-science, non-IT jobs. In other words, more “business” type positions (relating to operations, business development, marketing, market research, public relations, etc.), are becoming more and more difficult to receive “easy” approvals without any request for further evidence (RFE). While “sales” related jobs were always challenging, even other business-related positions that used to be deemed acceptable, like market research analysts, are becoming less assured of an approval. In fact, just recently this April 21, 2014, a federal district court found no error in USCIS’s decision that an entry-level public relations specialist was not a specialty occupation.
What does this mean? Answer. For both the sponsoring employers and the foreign national applicants, it is imperative to have a Plan B. In particular, for the employers who submitted multiple H-1B petitions this year, statistically speaking, less than half of those candidates will actually be approved for an H-1B visa. Therefore, the company must devise a Plan B for how it will fill those positions for which it can no longer hire foreign national candidates under H-1B status – whether such Plan B involves considering other visa options, or once again trying to recruit for qualified U.S citizens and/or permanent residents, etc. For the foreign nationals, especially those international students whose OPTs will soon expire, Plan B is especially critical, as you only have a 60 day grace period to leave the United States.
Written by H. Heidi Son, Esq.
Of Counsel
SW Law Group P.C.