Dear Readers:
Like many immigration firms around the US, we’re in the middle of preparing H-1B applications. To call this an exercise in frustration is fair. The H-1B program has been under attack from both pro-immigration and anti-immigration groups and there are few out there who would say the program works well.
Here are my frustrations in no particular order:
- The number of H-1Bs has been the same for decades. The quota of 65,000 was established in 1990. Congress added a bonus cap of 20,000 for US advanced degree graduates and also exempted university employers about 15 years ago. But the quota is so low compared to the demand that we’re likely to see all of the applications go immediately when the cap is opened in April and then a lottery will begin for just those people who file in the first week. I’m guessing close to 300,000 applications will be received for the 65,000 visas available. Insane.
- USCIS consistently miscounts the numbers. Their methodology has never been spelled out and they have been dodging complying with a Freedom of Information Act lawsuit to properly explain the numbers. Revoked H-1B numbers are supposed to be thrown back in to the pool and made available for others, but in the 26 year history of the program, USCIS has never reopened the H-1B cap. In some years, USCIS has issued too many H-1Bs and in other years far too few.
- The H-1B cap exemption rules designed by Congress are unclear and employers and workers are largely subject to the whims of an examiner.
- Staffing and consulting companies have effectively gamed the system. A handful of them gobble up half the H-1Bs that are available. We should have per employer limits and divide the quota up to be used throughout the year so a much greater variety of employers have an opportunity to access the program.
- The program is designed to be a short-term non-immigrant program, but per country limits force many to be in H-1B status for decades. USCIS seems to like this and has fought tooth and nail to keep these high skilled workers in H-1B status rather than allowing them to file early adjustment applications (hence, the Visagate lawsuit) or Employment Authorization Documents (see the very disappointing recent proposed regulation on that topic).
There are a lot of ideas floating around to fix the H-1B program. I’ve got many myself. I also would like to see us think more expansively about taking pressure off the H-1B program by getting rid of the per country caps and creating “free agency” for H-1B visa holders after six years where they can maintain a valid non-immigrant status, but have the ability to work for any employer (like an EAD).
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I’ve received a lot of good feedback regarding my new book The Physician’s Immigration Handbook. If you’re interested in buying a copy of the print book or downloading the eBook, go to https://www.visalaw.com/mdbook/.
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As always, we invite you to contact us if our firm can be of assistance. Please visit our web page at www.visalaw.com for information on reaching the firm or scheduling a consultation.
Regards,
Greg Siskind
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.