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The Government’s War on H-1Bs

by Ken Robinson, Attorney and ImmigRanter at Slowik & Robinson, LLC

S-R HIB RantsCongress, the Department of Homeland Security, United States Citizenship and Immigration Service (USCIS), the U.S. Department of Labor (DoL), and the U.S. Department of State have been making the process for obtaining H-1B visas progressively more difficult over the years, placing annual numerical limitations (the H-1B “cap”) on the number of visas available in that category, adopting adjudication policies with ever higher and often unreasonable standards, and modifying government interpretations as to the definition of employer. The H-1B visa is the workhorse of temporary employment visas in the arsenal of visa classifications. It is often used by foreign students who come to the U.S. to begin their careers here – students who contribute to areas where our workforce is lacking – most notably in the STEM (science, technology, engineering and mathematics) fields.

The cap for H-1B visas is set at 65,000 for “traditional” H-1Bs and another 20,000 for those beneficiaries who have graduated with a U.S. master’s degree or higher. Despite a greater demand than inventory, the cap has not increased in over a decade. The demand for H-1B visa workers has increased significantly after a temporary decline during the most recent recession. An H-1B visa lottery is now held when the number of U.S. employer petitions outnumber the available visas.

In the past, we have witnessed two or three filed H-1B petitions for every one visa available. These submitted petitions can be requested at the beginning of what we employment-based immigration attorneys fondly refer to as “H-1B season” (visa availability begins on April 1 for petitions that, if approved, would allow for the H-1B work to commence on October 1, the beginning of the government’s next fiscal year).

Last year, there were visas available until mid-June, after which time employers had to wait until the next April to petition for a prospective H-1B worker to begin in October.  As the economy improves, we expect that the H-1B season will shorten, likely reverting back to the days where, if an employer did not file the H-1B petition on April 1 or 2, the employer was out of luck. Even then, due to the lottery, more than half the filed petitions were returned due to the lack of visas.

Not to be outdone by Congress’s statutory cap limitations and USCIS’s agency interpretations, practices and policies, the U.S. Department of Labor has entered into the game of making it more difficult than it needs to be for employers hoping to secure an H-1B visa. One example is the DoL’s decision to prohibit H-1B employees to contribute to the cost of applying for H-1B visas. Currently, an H-1B visa can cost from $3,000-$5,000 (the majority of this expense is for government filing fees). Many employers would not pass along this expense, even if they could; however, smaller employers and not-for-profit institutions may be more inclined to do so if legally permissible, as it was several years ago. The result of this restriction is that fewer employers are willing to use the H-1B visa. Also, DoL changes to forms, processing requirements, and technology as it relates to the necessary pre-H-1B submission filing, called the Labor Condition Application, have made the entire process more cumbersome.

Lastly, the scrutiny that some foreign national employees receive from the U.S. Department of State at U.S. consulates in their home countries, where they apply for H-1B visa stamps, has led to lengthy processing delays as well as arbitrary and capricious denials of the visa stamp.

The Rant –

The war on H-1Bs goes against the very core of one of the three fundamental purposes of our immigration system:  to help build and sustain our economy (the other two being to foster family unity and to aide in national security efforts against foreign threats). To adequately address the many ways that each of the various agencies involved in the H-1B process have made the process less business-friendly could serve as the subject of months of blogs. Taken together over the past decade, the process has become more expensive, lengthier and more difficult. It is clear that the overall bureaucratically established enmity regarding the H-1B visa classification has created a chilling effect.  While not always the case, it is fair to conclude that, generally, the H-1B visa process is less efficient, more unproductive and ultimately unfriendly to businesses and foreign nationals alike.

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