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Problems with the H-1B visa: From Work Horse to Show Pony

by Ken Robinson

hibThe H-1B visa is a visa classification used by some foreign national who will be temporarily employed–full- or part-time–in a specialty occupation by an employer.  A specialty occupation is one which requires a theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent related to the occupation.  For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are all areas in which specialty occupations are routinely found.  But what about, say, fashion designers?  Does someone who designs t-shirt graphics for a multinational company qualify as someone in a specialty occupation?

Restaurant/hospitality managers?  Marketing professionals?  The Service makes employers–and their immigration counsel–jump through hoops in order to demonstrate that the position qualifies as a specialty occupation.  This creates an evidentiary burden for employers which is overly cumbersome, with the net effect of creating obstacles to employment where none ought to be.  We recognize that employers should demonstrate that an employee qualifies for a specialty occupation.  But, cases from just two years ago, where the H-1B was readily granted, are now generating undue inspection from the Service.  That’s problem number one.

Current immigration law limits the number of H-1B visas available per federal fiscal year to 65,000[1], with an additional 20,000 visas for foreign students who complete a Master’s degree or higher at a U.S. university.  This limitation is referred to as the “numerical cap”.  Foreign nationals who will work at institutions of higher education or related or affiliated nonprofit entities, and nonprofit or governmental research organizations, are exempt from the cap.  But don’t be misled.  Despite all these add-ons, 65,000 actually isn’t a lot of visas.  Each federal fiscal year begins October 1st and ends September 30th of the following calendar year.  H-1B visa cap filing “season” begins on April 1st, six months prior to the beginning of the next fiscal year, as this is the first date by which employer can “reserve” a visa for their employees to begin six months hence.  In previous years, demand for H-1B visas was so high that the cap would be exhausted within the first few days of April – for work opportunities that would commence the coming October.  After the first or second week in April, many employers were shut out of the opportunity to employ highly qualified workers because there weren’t any visas left.  The paucity of H-1B visas leaves employers scrambling to fill positions.  If this sounds ad hoc and inefficient for employers, that’s because it is.  That’s problem number two.

There’s also the “cap-gap” issue.  Foreign students study in the U.S. most often on an F-1 visa.  The gap occurs when the student’s F-1 visa expires before the student is allowed to assume the H-1B work–October 1, or the start of the fiscal year.  In these situations, students must either leave the U.S. once their F-1 visa expires, only to re-enter a few months later to begin their H-1B employment, or find a way to stay in the U.S. and continuing to work during that gap.  Students may qualify if they, and the position offered, meet certain conditions.  But meeting those conditions can be tricky, and employers are often unaware of how critical timing can be in preparing a cap-gap subject H-1B for an F-1 student.  Those students who don’t qualify–or who do, but don’t realize they do–find themselves paying for costly plane tickets out of the U.S., only to return a few months later.  These are students who have earned degrees here in the U.S., who could be working for U.S. employers and contributing to the U.S. economy, rather than spending a forced holiday at home.  But these issues are really secondary to those faced by the employers.  Often, these students are already working for their employers in F-1 status (usually as part of post graduation optional practical training).  So, when the cap-gap petition is either not filed, or is filed with incorrect information or untimely, the student must stop working immediately.  Once again, a U.S. employer is put in a position where it must go out and find another qualified worker to take the foreign national’s place.  There are very real economic costs associated with having to replace an employee and keep work flowing, all borne by the employer.  That’s problem number three.

Why does the H-1B visa fail our businesses?  Qualifying for the visa has become more complicated.  As the government places forever more demanding evidentiary obstacles–perhaps as part of a belief that U.S. employers can and should employ U.S. workers rather than foreign nationals–getting an H-1B visa has grown increasingly more difficult in the last few years.  Often, holding employers to a supra-regulatory standard is unreasonable and serve no legitimate purpose.  Let’s be clear.  All things being equal, if a U.S. worker and a non-U.S. worker (one that would require the costly and time-consuming work required to obtain an H-1B) were applying for the same job, the employer is hiring the U.S. worker nearly every time.  Employers will be the first to admit that the employer is seeking the best and brightest to do the work required.  Period.  The costs associated with filing for H-1B visa have risen dramatically in the past few years, so that a filing that was a few hundred dollars five years ago is easily several thousands of dollars today.  And last year the government created a new fee which penalizes companies which employ “too many” foreign nationals.

Our firm can’t do anything to increase the number of H-1B visas available.  That number is set by the government, and is unlikely to change anytime soon.  What we can do is help you determine if your employee qualifies for a specialty occupation.  We can assist in designing a strategy to advance your interests exploring all legal options available.  We can help you put together the best presentation of the evidence needed to demonstrate that your employee qualifies for this visa.  If you’re an educational institution, or at a non-profit with a relation or affiliation thereto, again, we can help you assess if this affiliation and make your H-1B petition non cap-subject.  We can help you file cap-gap petitions for your F-1 employees in OPT status.  We can do lots of things!  But you need to call us.  Soon.  H-1B season is almost here.

[1] 5,800 of these visas are reserved for nationals of Chile and Singapore, so the actual number is fewer than 65,000.

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