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The H-1B Visa Cap : NOT Working for Math, Science and Technology-based Businesses

imm_2Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached.  They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject.  “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.

That’s right, a “lottery” system.

USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap.  Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption.  Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.”  It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.

The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year.  This is yet another clear sign that we need comprehensive immigration reform, and soon.

Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company.  The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later).  I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition.  How does anyone run a business with that much uncertainty (or delay for that matter)?  And yet that’s the very system that we work within.

Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week.  My fingers are crossed.


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ABOUT THE CONTRIBUTOR

David W. Meyers, Esq. is managing partner of Meyers & Meyers, LLP. David works with individuals, businesses and higher education institutions helping them resolve any issues regarding immigration, citizenship and naturalization for themselves or their employees.

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