Congressional action uncertain as another H-1B cap filing period closes

The H-1B cap filing period this year went exactly as expected: The government was hit with a deluge of petitions, congressionally mandated caps were reached within days, and U.S. Citizenship and Immigration Services announced that it would hold a lottery to select petitions that will be eligible for visa processing.

Some would like to see the process change.

“We have to find ways to make progress and solve some of the real problems facing our nation,” said Sen. Orrin Hatch (R-Utah), when he and other senators introduced the Immigration Innovation (I-Squared) Act of 2015, a bill that would increase the number of H-1B visas available to employers.

The proposed legislation would increase the H-1B cap to at least 115,000 per year – and as high as 195,000 per year in some cases, depending on demand.

During the Great Recession, the quotas of 65,000 visas for foreign nationals with an undergraduate degree or equivalent and 20,000 for foreign nationals with advanced U.S. degrees took significantly longer to fill, but these trends have since been reversed. In 2009, it took almost nine months before caps were reached and in 2010, it took almost 10 months. In 2011, the time frame dropped under eight months and in 2012, it dropped to just over two months. In each of the last three years, however, the caps were reached within a week.

The demand for the H-1B visas is largely driven by the technology sector. Brookings Institution data from 2013 showed that computer-related occupations make up more than 70 percent of the jobs H-1B petitioners seek. Jobs at the top of the list include computer systems analysts, computer programmers, software developers and computer and information systems managers. Brookings also found that 90 percent of H-1B petitions were for positions that required high-level STEM (science, technology, engineering and mathematics) knowledge. H-1B demand is also high in business, finance, healthcare and life sciences.

There is precedent for raising the H-1B cap. As petitions piled up in the late 1990s, Congress raised the cap to 115,000 for the 1999 and 2000 fiscal years. Congress raised it again to 195,000 for fiscal 2001, 2002 and 2003. The legislation was not renewed, however, and in 2004 the cap dropped back to 65,000, where it was initially set in 1990. Congress subsequently enacted legislation to provide the 20,000 additional visas for foreign nationals with advanced degrees from U.S. universities – a cap I-Squared would lift entirely.

BAL Analysis: It’s difficult to determine whether the cap will be raised in the near future. I-Squared has some bipartisan support, but there are plenty of opponents to high-skilled immigration reform as well. Executive action does not appear to be an option, as the Obama administration has said the president does not have the authority to raise the H-1B cap unilaterally.

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