We have had H1B lottery for the past 5 consecutive years now…in the past, we used to predict, if there would be lottery or not…but, now, it is not about either we will have lottery or not, it is about how many H1B petitions will be filed in this year H1B Visa 2019 quota, that’s the question. Since Trump Administration has taken office, many new rules and executive orders have come into effect and these can have a tremendous impact on the overall filings, we will look at all of these aspects, including history, impact of new rules and look at the projections for this year’s H1B lottery.
We will look at the below factors that have major impact on the H1B filings.
- H1B Cap reach dates history and trends from past data
- US Economy, Unemployment Rate
- Trump Administration – New Immigration Rules/ Executive Orders
- Trump’s Buy American, Hire American Executive Order
- New USCIS memo for Third Party worksite H1B petitions
- Level-1 Specialty Occupation, H1B Abuse Report, Site Visits
- H4 EAD Removal Regulation
- Fall 2017 Regulatory Agenda – H1B Program, H4, OPT changes.
- Other Proposed H1B Visa Bills, High H1B Fees
- F1 Visa Status Holders– Graduating Students, OPT Holders
- Previous years prospective H1B seeks not picked in Lottery
H1B Visa Cap reach dates History and Trends from past data : If we look at the historical data (plotted in below graph), it is quite obvious that we could very likely have a lottery situation. We had lottery for H1B visa filings for the last 5 consecutive years. Most recently, for FY 2018 season, we had about 199,000 H1B petitions filed. For the previous years, FY 2017, we had 236,000 ; FY 2016 had 233,000 petitions. You can check out the full history of H1B cap reach dates from 1999 – 2018 . Looking at the graph and data we can tell that we will have lottery. We will look at more details on the numbers later in the article.
US Economy, Unemployment Rate : Despite many speculations, before Trump took office, by many that US economy might be in trouble with his “America First” approach, it turns out that US economy has no impact since he took office and doing far better than before. The Stock market is doing great, US unemployment rate is at a 17-year historic low of 4.1% in February 2018 (see below graph). It was 4.7% last year at this time, you can see that it has declined further. GDP growth was at 2.6% for year 2017, which is much better than the previous year. All of these economy indicators tell that there will be continued demand for skilled workers, which adds up to demand for more H1B workers for FY 2019 season.
Trump Administration – New Immigration Rules/ Executive Orders : Since Trump Administration took office, there were many changes done from immigration standpoint that have a significant impact on the H1B visa program. USCIS has rolled out many policies and many bills are in progress.
Let’s look at some of the major ones.
- Trump’s Buy American, Hire American Executive Order : After President Trump took office, they passed “Buy American, Hire American Executive Order”, that proposed measures to protect US workers and make H1B program policies more strict and make sure they do not displace American Workers. This executive order has spawned many changes in 2017 and 2018, including the third-party worksite new memo. This has a big impact on H1B program and discourages employers from filing foreign workers easily.
- New USCIS memo for Third Party worksite H1B petitions : On Feb 22nd, USCIS published a new policy memo outlining additional requirements for Third Party worksite H1B petitions, requiring employers to share details on contracts, detailed itineraries for such petitions. This is a big concern for many MNCs and IT body shop companies that operate in EVC model. This will have a significant impact on the number of H1B filings. It will increase more RFEs as well and this could have a negative effect and discourage employers to file H1B petitions due to complexity in getting these documents from clients.
- Level-1 Specialty Occupation, H1B Abuse Report, Site Visits : USCIS announced last year on the day of accepting H1Bs for FY 2018, they would not consider Computer Programmer, especially Level 1 not specialty occupation and also more site visits to verify H1B practices and additional initiative to report H1B fraud via email. All of these changes had a significant impact on FY 2018 petitions that and ended up in more RFEs than ever before. Check RFE Approval Rates from 2007 to 2017.
- Fall 2017 Regulatory Agenda – H1B Program, H4, OPT changes : There are many items in Fall 2017 regulatory agenda that impact H1B program that prevent fraud and strengthen the program. These policy changes are not going to help the MNC and IT outsourcing companies and can have bad impact. While most are not complete, but these give guidance on what to expect in future.
- H4 EAD Removal Regulation : While there was a lawsuit in court by ‘Save Jobs USA’ on H4 EAD rule for sometime, in December 2017 USCIS published an agenda item to remove H4 EAD rule for certain spouses, this was further updated by USCIS that they need more time before they publish rule draft to remove H4 EAD by June 2018. This is a huge deal for all current H4 EAD holders working. This removal of H4 EAD will encourage the current H4 EAD holders to think of H1B and maybe file H1Bs in FY 2019 quota.
- Other Proposed H1B Visa Bills, High H1B Fees : There are many other H1B Visa bills like the 130K wage, Remove H1B lottery and many that are in house and senate at various stages to strengthen the H1B program. You can check H1B Visa Bills Tracker. All of these do not encourage filing of H1Bs as there are more checks in place and limit the abuse. Also, the H1B Visa Petition Filing Fee is very high for the IT consulting companies, that discourages filing of H1Bs.
F1 Visa Status Holders– Graduating Students, OPT Holders : The number of international students applying for H1B in US after their graduation or towards their end of OPT is probably one of the biggest factors that accounts for H1B numbers. As per IIE Open Doors Report, you can see from below graph that, there was an increase of 19% of F1 students on OPT in 2016-2017 academic year. With New OPT rules, students from STEM category can potentially work for 12+24 = 36 months or 3 years on OPT. As per stats below, you can see there are anywhere around 120,000 students from 2014/15 who will lose the option to work on OPT and need H1B. These students will very likely apply, of course, some would have already applied previous years, but overall, there are at least 75,000 students on OPT who would look for H1B. Besides OPT, many graduating students who are from the pool of 300,000 students under graduate degree category may potentially apply. Overall, the stats tell that there are many F1 students who will potentially apply for FY 2019 category to work in US.
Previous years prospective H1B seeks not picked in Lottery: This is also a major factor that plays a big role in H1B cap filings. We had lottery for the last 5 consecutive years and in total there were about 425,000 (85,000*5) H1Bs available, but we had about 964,500 petitions (124,000+172,500+233,000+236,000+199,000) filed. Just the difference is about 539,500. Think of it, even if 10% of these apply, it would make up about 54,000 petitions. The odds of at least 10% of them applying is very high.
Now, that we have looked at most of the factors, let’s review our take and predictions.
H1B Lottery Predictions for FY 2019 quota – How many petitions ?
If we summarize the above factors influence in one statement as More H1Bs or Less H1Bs, it looks like below.
- H1B Cap reach dates trends from past data – Will have Lottery
- US Economy, Unemployment Rate – Very good – More H1Bs Demand
- Trump Administration – New Immigration Rules/ Executive Orders
- Trump’s Buy American, Hire American Executive Order – Less H1Bs
- New USCIS memo for Third Party worksite H1B petitions – Less H1Bs
- Level-1 Specialty Occupation, H1B Abuse Report, Site Visits – Less H1Bs
- Fall 2017 Regulatory Agenda – H1B Program, H4, OPT changes – Less H1Bs
- H4 EAD Removal Regulation – More H1Bs
- Other Proposed H1B Visa Bills, High H1B Fees – Less H1Bs
- F1 Visa Status Holders– Graduating Students, OPT Holders – More H1Bs
- Previous years prospective H1B seeks not picked in Lottery – More H1Bs
In general, there are many policies in place by Trump Administration and USCIS under the ‘Buy American, Hire American Policy’ that could limit the H1B filings for FY 2019 as the rules are stricter and more burden for the employers to put all the documentation for the same. On the other hand, the US economy is great and a large number of F1 students on OPT and Graduating STEM students and H4 EAD holders are really looking to apply for H1B visa to either work or continue to work in US. Besides, many MNCs and IT Outsourcing companies, including the big employers like Microsoft, Google, Facebook in US have continued demand for more H1B visa holders. While some of these factors balance out, looking ahead we foresee that there will be more stringent rules coming in for the H1B program and we believe that many of the organizations would take the chance and apply now for H1B rather than later. With the new rules and changes, while the numbers could be slightly less than last year, we do not expect a big drop in filings. We anticipate anywhere from 170,000 to 190,000 H1B petitions for FY 2019 quota.
What do you think ? What are your thoughts on the H1B lottery numbers ?