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You can’t make this stuff up. This is the world that I and a few other local colleagues of mine work in.
So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight. And then mayhem ensued, and I promise you, it was not fireworks or noisemakers. Let me explain.
One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program. The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.). Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.
Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year. Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.
Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers. Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission. Applications are processed by the USDOL in the order that they’re received. And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.
As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.” The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018. Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous. It was also really so unnecessary.
Readers of this piece know how much I long for meaningful reform to our immigration system. There are many substantive examples that I’ve written about over the past few years. This is not one of them. This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.
What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company? And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created? Was the system not adequately stress tested? Was no one monitoring it (perhaps in light of the current government shut down)?
As annoying as this whole debacle has been, it’s not missing New Years that bothers me. Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event. It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done. It really is ridiculous. The H-2B program is an absolutely necessary program for many employers. The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed
For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.
 At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
This is becoming a terrible annual ritual. That is, April 1 has once again come and gone, a new H-1B filing season was upon us, and on April 7, 2017, U.S. Citizenship and Immigration Services (“USCIS”) once again announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2018. So the H-1B filing season, after only five (5) days (because USCIS did not start accepting petitions until Monday, April 3, 2017), is over for employers who are not eligible to file cap-exempt petitions.
The H-1B program was created so that employers can fill specialty occupation positions in their companies on a temporary basis. These are positions that typically require a Bachelor’s Degree for entry into the field. Look around today’s Capital Region, or Tech Valley as it has come to be known. These positions are vital to local employers, allowing them to be more competitive, increase growth, and yes, even create jobs for U.S. workers here.
Unfortunately, employers are being stymied by these ridiculous artificial limits which were established when I wasn’t even practicing law! And, as USCIS has done in prior years when it received well over 200,000 petitions for these coveted H-1B visas, USCIS randomly selects petitions to determine those that will have a chance at the 85,000 visas available. (Imagine telling your clients, after they’ve paid you your fees for your professional services, that a “lottery” will dictate whether their petition will be selected.)
Benjamin Johnson, Executive Director of the American Immigration Lawyer’s Association (“AILA”) was recently quoted as saying the following:
“With unemployment below 5% and an economy hungry for skilled, educated workers, why are we hampered by the arbitrary limits on this program? Instead of a lottery to funnel only 85,000 of the petitions through the process, this entire operation should be driven by market demand so that the program meets the legitimate needs of our country. Each year that we limit these visas with an artificial cap, we stifle economic growth and all of us lose out. It is an irrational system. Our immigration laws were written more than a generation ago, when Google and Amazon weren’t household names, before Twitter, Facebook, and social media itself existed. Every year that goes by without action on this and other necessary legal immigration reforms means countless opportunities lost.”
I could not agree more. The simple fact is that U.S. employers are not able to find enough, and in some cases any, highly skilled workers to fill essential positions in their businesses. There are not enough U.S. workers with advanced skills in science, technology, engineering and mathematical occupations (i.e., STEM fields) to perform the work that many high-tech companies need. Indeed, this shortage of skilled labor has forced many companies to out-source their operations abroad, something I see clients of mine struggling with every day.
I think that the arguments as to why we need to limit the amount of H-1B’s (e.g., to protect U.S. workers, wages, etc.) are generally without merit (there are some companies that endeavor to abuse the program, but in my opinion they are outliers), and the current regulations implementing the H-1B worker program protect U.S. workers, wages and so on. 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.
For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States. 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.
What about arguments that the H-1B worker program negatively affects employment rates? Not true. 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, compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor 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? Again, not true. 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. 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.
There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, related or affiliated non-profit entities, nonprofit research organizations, or governmental research organizations), and it’s great 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.
 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).
 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).
 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.
 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.