H-1B cap season is upon us, but will the H-1B cap be increased? You may have heard of the “I-Squared Act of 2015” (aka the “Immigration Innovation Act of 2015” or S. 153), introduced in the Senate in mid-January. Like the President’s Immigration Executive Action, the I-Squared Act contains a variety of proposals meant to improve the country’s immigration system. Not all of the provisions relate to H-1B workers, but that’s what I’ll address here.
The Bill begins with a section captioned, “Market-Based H-1B Visa Limits”. This Section describes a system which would provide for increased H-1B numbers depending on demand. The H-1B cap would increase from the current 65,000 (+20,000) to 115,000 (but not more than 195,000). Demand would be assessed on a rolling basis beginning 46 days after the first date when H-1B filings are permitted, then again on the 61st day and so on. That should certainly alleviate the distress of cap-subject employers…if the Bill were to ultimately become law.
Further, the Bill proposes a 60-day grace period for the H-1B worker when the employment relationship ends (whether voluntarily or involuntarily before the ending validity date of the H-1B petition approval).
Of note, the Bill also calls for work authorization for the spouse of an H-1B worker. This raises another question: When will we hear more regarding the H-4 work authorization that is already under consideration?
Will the Senate Bill become law? That seems highly unlikely, and particularly not in time for this year’s H-1B cap season. So for now, cap-subject employers intending to petition for H-1B status for cap-subject foreign workers should be prepared as usual.
Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP. She may be reached at firstname.lastname@example.org