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H-1B Filing Season Comes and Goes: Why the Cap Should be Raised

????????????????????????????????????????????????????????????????????????????????????????????????????So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again.  April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?

A little reminder about the H-1B nonimmigrant worker program.  An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.”  A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States.  Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university.  In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.

So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available?  They employ a lottery to choose whose petition will be adjudicated and whose will be rejected.  Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!

That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)

Which of course begs the question whether the cap makes sense.  According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days.[1] In four of those years, the cap was reached in six days or less.  This year it was seven (7) days.

I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.).  In my opinion, the current regulations implementing the H-1B worker program do that just fine.  The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.[2]

For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States.[3]  In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.[4]

What about arguments that the H-1B worker program negatively affects employment rates?  Bologna. (I haven’t seen, let alone written, that word in 30 years!)  The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.

The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas.  For example, many STEM occupations have very low unemployment,[5] compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.

Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields?  Some even argue that H-1B visas are all taken by Silicon Valley companies.  Some even say Microsoft and Google take them all by themselves?  Wrong!  According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers.[6]  And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.[7]

There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them.  But the simple fact is, the cap should be raised, significantly, or even eliminated.  The evidence is clear that the H-1B visa program enhances our economy in so many important ways.

 

[1] U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.

[2]  See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).

[3] Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).

[4] Id.

[5] Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.

[6] Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.

[7] Id.


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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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