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Employers can expect stiff visa competition

New cap-exemption proposal could benefit more nonprofits this year.

February 19, 2016
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Last year, 233,000 applications were filed for H1B visas, but only 85,000 were available.

Susan Im, immigration attorney and president of Im Law, said she expects this year’s application numbers to again far exceed the number of available H1B visas.

“We already know employers are facing this uphill challenge of trying to get one of those coveted 85,000 visas. That hasn’t changed,” Im said. “Increased demand is definitely going to be expected for this year.”

Congress allocates the number of H1B visas annually available, which are granted to applicants through a lottery system. The visas are provided to highly skilled foreign nationals with expertise in fields such as the sciences, technology, medicine, business, education, law and the arts.

Under current law, 65,000 H1B visas are allocated each year and another 20,000 are provided for foreign nationals holding U.S. master’s degrees.

Higher education employers are exempt from the cap, and nonprofits with a affiliation with a higher education institution or that are related to a higher education institution sometimes qualify for a cap exemption, Im said.

She said there would be one difference this year concerning cap-exempt status that could benefit some applicants.

“The Department of Homeland Security published a proposed rule on Dec. 31 regarding certain high-skilled workers,” she said. “They are going to be codifying in the regulations an expansion of the definition of what types of organizations could qualify for H1B cap exemption.”

The change is in regard to the definition of what constitutes an education-related or -affiliated nonprofit entity. Im said U.S. Citizenship and Immigration Services, or USCIS, has not applied the exemption consistently.

“We’ve seen very inconsistent adjudications,” she said. “We needed some better guidance for the officers to follow.”

The DHS-proposed rule would codify in the regulations that the cap exemption includes nonprofits that have entered into formal written affiliation agreements with higher education institutions.

“For the purposes of research or education, that is huge because we have a lot of nonprofits that have those kinds of affiliations with colleges, universities, medical schools, and they still aren’t being recognized by USCIS as being exempt from the cap, even if you show that,” Im said.

She said the rule includes a second part, however, that is a little more vague.

“They have to prove that one of their primary purposes is to directly contribute to the research or education mission of the higher education institution,” Im said.

“That is a little more nebulous, and I don’t know how USCIS is going to interpret it, but I’m still excited about it because this could be a very good thing for a lot of nonprofits that have been unsuccessful in getting cap exemption.”

Im said the proposed rule also addresses another important aspect of the H1B visa program: providing H1B visa holders with a grace period that will allow more opportunity for switching employers or dealing with a job loss.

“Another development in this proposed rule is the creation of a one-time, 60-day grace period for H1Bs and other work visa categories,” she said.

“This is huge because with the (better) economy, H1B workers may want to move for a better opportunity and employers want to access them.”

Im said under the current rule, if an H1B visa holder leaves a job, he or she is immediately “out of status,” which she said can be a “distressing situation.”

“This one-time, 60-day grace period allows those H1Bs who lose their job or are seeking a new opportunity to be able to change status to another category or transfer to another employer and not have to worry about being out of status,” she said. “That is a positive development for H1Bs. It’s going to increase mobility, and it’s a good thing for employers looking to access talent.”

The proposed rule is a result of President Barack Obama’s executive actions on employment-based immigration.

Im said the Department of Homeland Security currently is taking public comment on the rule. When that concludes later this month, DHS will review the comments and decide whether to act on any of them. The final step will be to publish the rule — at which point, USCIS will officially implement the program.

USCIS will begin accepting new H1B visa applications April 1.

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