Monday, January 31, 2011

Immigrant limitations could hurt business growth

 H-1B visa cap could hurt business in the long-run

WASHINGTON, DC – The United States Citizenship and Immigration Services (USCIS) announced last week that the statutory cap of 65,000 H-1B visa requests had been reached for fiscal year 2011.  The cap was reached in nearly 10 months after the filing window opened last on April 1, 2010, while during the 2005 through 2008 fiscal years, it took a week or less to reach the 65,000 cap.  This slowdown is indicative of the poor economy.

H-1B petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialized knowledge (such as the sciences, medicine and health care, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

“The economy, while recovering, is still slow and so the demand by business for any new workers is still low. It is no surprise that the demand for foreign workers is also less than it was five years ago and so 65,000 H-1B visas lasted at least through 4 months of FY2011. But, during the boom, that number and that cap was clearly inadequate,” said David Leopold, President of the American Immigration Lawyers Association (AILA).  “A common sense approach to high skilled visa distribution would be more flexible to keep in tow with our dynamic economy instead of pinning the visa numbers to a static limit that was determined by Congress in the last decade.”

The AILA is seeking to change the static number adopted by Congress in the last decade to a more flexible system that accommodates the market needs.  In May of 2006 the USCIS reported that it had received sufficient H-1B petitions to reach its mandated cap for Fiscal Year 2007.  However, the day before it released its announcement, the USCIS had reported there were as many as 12,000 H-1B authorizations available.  When questioned by the AILA about the discrepancy, the USCIS stated that the count published on May 25, 2006 failed to include filings that had already been received by their offices, but had not been entered into their computer systems due to data-entry backlogs.  As a result, the published count did not include all cases that had been received by USCIS as of the date of their report.  The combination of the data-entry backlog and the volume of new cases delivered in the final week before the cap was reached made it appear that 12,000 cases arrived in their offices overnight.

“While most businesses are cautious about hiring in a slow economy, those that truly need a specialized knowledge worker and can't fill that position with a U.S. worker will have to hire a foreign worker using the H-1B process,” said Crystal Williams, AILA’s Executive Director.  “But, what happens when the economy is booming? How many businesses will have to go without specialty knowledge? Under the current cap, it could be tens of thousands. It’s time to change the H-1B visa process.”

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