Congress must respond!
AS A sure sign the US economy is improving, US Citizenship and Immigration Services (USCIS) announced that the annual H-1B quota (“H-1B Cap”) for FY 2014 was reached within the first week of the filing period, which began on April 1, 2013. On April 7, 2013, USCIS used a computer-generated lottery process to select enough petitions needed to meet the regular H-1B cap of 65,000 and the 20,000 under the advanced degree exemption or “Master’s Cap.” FY 2014 marks the first year since 2008 that the H-1B quota was received in the first week of availability and the quota was not only reached but exceeded by nearly 75% of capacity, signaling Congress that the current H-1B quota is grossly inadequate to meet the US economy’s need for specialty workers.
USCIS had announced prior to the opening of the H-1B quota on April 1, 2013 that it anticipated that the annual quota or “cap” of H-1B Visa Petitions might be exhausted within one week of the opening date. The USCIS also announced that it would conduct a lottery to select the petitions to be adjudicated. Indeed, both of those predictions have come to pass and the US Congress, which is at work preparing to pass a major overhaul of the US immigration system, is on notice.
Since the sunset of the provisions of the American Competitiveness in the 21st Century Act (AC-21) in 2002, which had raised the annual number of H-1B visas to 195,000 for a period of three years, the “H-1B cap” has been reached each year leaving thousands of professional workers and employers seeking to hire them out of business. The annual cap of 65,000 is absurdly insufficient to accommodate businesses, as has been made obvious over the past several years, with last year’s cap reached by July 2012, only three months into the fiscal year, even while the US economy was still barely clawing its way out of a deep recession.
Employers seeking to hire an H-1B professional must establish that the prospective employee: (1) has a bachelor’s degree; (2) seeks to come to the United States to perform services in a position requiring a bachelor’s degree or higher for entry into the position; and that (3) the degree is directly related to the nonimmigrant’s field of endeavor. The US employer or sponsor must demonstrate a need for a worker and attest that insufficient domestic labor is available to fill the need. Of course, the US employer must also establish his ability to pay the “prevailing wage” for the position.
If the intended worker is overseas, he may obtain an H-1B visa from the US Embassy upon USCIS approval of a Petition in the US A nonimmigrant visitor in the United States, for instance on a B-2 visa, may apply for “change of status” from visitor to H-1B professional worker. The new status will be indicated on the person’s I-94, but is not a travel document. In order to travel and reenter the United States in H-1B status, a visa must be obtained at a US Embassy or consulate abroad.
The number and types of occupations that will qualify people for classification as H-1B professional workers are constantly expanding. With the development of so many new highly specialized occupations in the high-tech industries, more and more H-1Bs are necessary to fill the demand, and to maintain the status quo for more traditional occupations such as accountants and engineers.
With the H-1B quota used up in less than one week and USCIS reporting receipt of enough H-1B Petitions to fill a total of 124,000 positions, employers seeking some 60,000 specialty workers are left in the lurch without sorely needed personnel, which inhibits the economic recovery. The message is clear, an H-1B Cap increase must be included in any serious Congressional effort at Immigration Reform this year.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
