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 cwadhwani@foxrothschild.com