Last year, it is expected that the H-1B cap of 65,000 will be reached on the very first day. If the cap is reached, the USCIS will conduct a random selection process. Last year, about 133,000 petitions were received on the first two days.
There are calls to push for more H-1B visas because the current cap is adversely affecting U.S. companiesí effective operations, efficiency, productivity and overall competitiveness.
Several employer groups and coalitions such as the Compete America, which includes big IT companies such as Oracle, Microsoft, Hewlett-Packard Corp., Sun, Google as well as Boeing, Coca Cola, and other interest groups such as the Association of International Educators (AIE) and American Immigration Lawyers Association (AILA) have lobbied for allocation of more H-1B visas and comprehensive immigration reforms.
Clearly, the clamor for H-1B visas shows that highly skilled professionals are badly needed in the U.S. Employers are willing to go through the intricate requirements of H-1B applications and processing to meet their employment needs.
The H-1B program allows U.S. employers to employ foreign professionals and skilled workers on a temporary basis. In order to do so, the employer must show that the position is a specialty occupation and that the foreign employee meets the qualifications for the job, particularly a U.S. equivalent of a bachelorís degree or higher. Typical H-1B occupations include scientists, architects, engineers, computer programmers, teachers, accountants, analysts and doctors.
When the U.S. employer decides to petition a foreign worker for H-1B, the employer must meet certain U.S. Department of Labor (DOL) and USCIS requirements.
Before submitting the H-1B petition, a labor condition application must be filed with the DOL to certify that the employer will pay equal to or higher than what similar workers in the area are paid; that the working conditions of similarly employed U.S. workers will not be adversely affected; and that there is no strike or lockout at the worksite or the occupation for which the foreign worker is sought to be hired. There are posting, documentation and attestation requirements that the employer must comply with subject to certain sanctions if violated.
Once certified by the DOL, the H-1B petition for temporary non-immigrant worker is filed with the USCIS. If granted, the H-1B can be valid for three (3) years, extendible for another three (3) years.
The Immigration and Nationality Act of 1990 set a cap for H-1B professionals at 65,000 per year. Due to the increased numbers of H-1B petitions filed by U.S. employers, the cap was increased to 115,000 in FY 1999 and FY 2000, and 107,500 in FY 2001.
In October 2001, the American Competitiveness in the Twenty First Century Act increased the yearly cap to 195,000 for the next three years. However, after that, the H-1B quota reverted to 65,000 per year.
With the challenges of global competition, job outsourcing, the aging of the U.S. population and the dearth of qualified U.S. workers, employers and lobby groups contend that the H-1B program is a vital tool for the U.S.A. to remain competitive in this world market economy. Instead of taking jobs from U.S workers, it actually keeps jobs in America and meets the needs of the industries by keeping them viable and competitive.
H-1B visas allow for a more vibrant economy by allowing highly educated foreign professionals to contribute to the U.S. economy in terms of productivity, innovation, research, creation of new products, expansion, generation of new jobs and overall global competitiveness.
While other countries are trying to attract more professional workers to immigrate, it is high time that Congress be more responsive and to introduce immigration reforms to expand the H-1B program in order to meet the nationís demands.
Editorís Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com