The Waiting Begins: H1B Cap Reached. USCIS to conduct lottery.
The Waiting Begins: H1B Cap Reached. USCIS to conduct lottery.
(April 16, 2014)
U.S. companies are quite literally taking a gamble when they seek to hire a foreign national temporarily. They need to place their bets 6 months before the date of hire. If that doesn’t work, they can try again next year, and the year after that. The congressional limit on the number of H1Bs available each year just doesn’t make sense for corporate America. We need to enable the U.S. economy to grow and if that means allowing U.S. companies to hire foreign nationals when needed, then the hiring process should not be reduced to a lottery. Congress needs to come up with a meaningful solution.
The so-called H1B season is finally over. Our firm filed all of our clients’ H1B petitions in the first week of April and on April 7th, USCIS announced that it had received 172,500 H1B visa petitions. Since Congress has only enabled USCIS to grant 65,000 H1Bs in any given fiscal year, plus 20,000 for beneficiaries with advanced degrees from U.S.
institutions, this means that about one third of those applying will not receive the requested visa classification this year. Unfortunately, there is no way to determine which beneficiaries are more essential to the U.S. economy so that USCIS can just choose those petitions and adjudicate them. Instead, USCIS will soon conduct what it terms a “random selection process” [i.e., a lottery) to determine which petitions it will adjudicate for H1B employment to begin on October 1, 2014. Unfortunately, those not fortunate enough to have their petitions selected in the lottery will receive rejection notices together with their originally filed petitions and their $2,325.00 in filing fees.
As a practitioner of immigration law, the sorry state of the H1B program is depressing to say the least. I wonder how many of the 87,500 individuals who will not be able to assume employment on October 1 of this year are individuals who could have contributed exponentially to the growth of their U.S. employers. I also wonder how many of the 87,500 that will be rejected are beneficiaries who will one day establish lucrative, tax-paying businesses, employing many people in a country other than the U.S. I wonder this because I know the real people behind the paper and forms that we file each year. I know this because I speak to the CEOs, CFOs, Human Resource Directors, etc., and can appreciate how relieved they are when they finally find the ideal candidate for a position they have been seeking to fill and we prepare the H1B petition that is thereafter rejected in the lottery. I know this because it happens too often and because, as the law firm receiving that rejected petition, I have to deal with the aftermath.
The H1B nonimmigrant category is reserved for those highly skilled foreigners who will contribute significantly to the U.S. economy and enhance U.S. innovative competitiveness. So, why is there a limit on the only visa classification expressly created to enable the entry of highly-skilled individuals? Presently, there exists no numerical limit on any nonimmigrant class other than the H class and the current limit is close to the lowest we have had in the history of the H1B visa program.
I began practicing in late 1998 and I remember preparing H1B visa petitions for filing all year long. In those days, the H1B visa cap was higher (115,000 in FY 1999 and 195,000 in FYs 2000-2003). We reached the cap briefly in certain years, but it didn’t disrupt the work place in any meaningful way. It wasn’t until FY 2004 that the H1B cap was reduced to 65,000. Now, we far exceed reaching the cap a full six months before the fiscal year even begins.
U.S. companies are quite literally taking a gamble when they seek to hire a foreign national temporarily. They need to place their bets 6 months before the date of hire. If that doesn’t work, they can try again next year, and the year after that. The congressional limit on the number of H1Bs available each year just doesn’t make sense for corporate America. We need to enable the U.S. economy to grow and if that means allowing U.S. companies to hire foreign nationals when needed, then the hiring process should not be reduced to a lottery. Congress needs to come up with a meaningful solution.
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The H1B program is riddled
The H1B program is riddled with fraud with companies benching these foreign workers.
Additionally, many U.S. companies find it advantageous to hire H1B workers as they cost much less than hiring an American worker.
This program is almost as bad as the EB 5 program.