April is not just the month for filing tax returns. In the United States, it is also the month where U.S. businesses are rushing to file their H1B petitions. Unlike other types of nonimmigrant visas, there is urgency in filing H1B petitions on the 1st day of April. Employers scramble to file early to avoid being rejected based on the numerical cap.
Jane entered the United States in 2007 with an H1B visa and worked as a math teacher. When her visa expired in 2010 and her employer contract was not renewed, Jane returned to the Philippines. In 2013, Jane applied for a teaching job again in the United States and was given a job offer. Her employer filed an H1B petition in 2013 but her petition was rejected because the cap was reached. In 2014, the same employer re-filed a new H1B visa again and to Jane’s disappointment, the visa petition was accepted but was eventually rejected. Both petitions were filed during the first day of April and yet, she was not successful in getting them accepted and adjudicated. Why were the petitions for H1B rejected? What are the options available to Jane?
Numerical Limits of H1B Visas
The nonimmigrant H1B visa is issued to professionals or those in specialty occupations. To be eligible for this visa, there must be a job offer from a U.S. employer for an occupation that requires a bachelor’s degree as the minimum requirement for entry into the particular position. Those commonly granted H1B visas are the engineers in the IT field, physicians, surgeons, architects, accountants and teachers in the elementary, secondary schools and colleges.
At present, there is a numerical quota of 65,000 visas per fiscal year, which begins in October through September. In addition, there are 20,000 H1B visas reserved for those holding master’s degree or higher from a U.S. institution.
The U.S. Citizenship and Immigration Services (USCIS) accepts filing of H1B petitions six months prior to the start of the fiscal year or on April 1 of each year. Recent trends indicate that there are more demands for H1B visas by U.S. employers than there are available H1B visas resulting in the annual cap being reached earlier. To determine which petitions to accept by USCIS, a lottery system is put placed and petitions are randomly selected when sufficient number of petitions is reached. This usually happens during the first 5-business day in April.
In order to increase the chance of getting the H1B visa, it is important to be strategic in timely filing the H1B petition. Target filing must always be April 1 or before USCIS makes an announcement that the cap has been reached. If despite properly filing on time and the petition is still rejected, the visa applicant is out of luck for an H1B visa. It is not only the applicant who loses out but also the U.S. companies who needed the services of the professionals and the highly skilled workers. The fact that the H1B cap is reached too soon is an indication that U.S. economy is getting stronger and that an immigration reform addressing the H1B limitations is essential to support this growth. Sadly, there is no reform in sight.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw or at 02-7211963)
