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Lev Kobrin
09-02-2004, 07:30 AM
H-1B Cap Numbers Going, Going, Gone?
Trying to figure out how the H-1B numerical cap works makes most employers feel a bit like Alice in Wonderland. One minute the numerical restriction on this visa category seems gigantic, the next minute the cap seems about right, and then, in the blink of an eye, it has shrunk to an uncomfortably small number that severely restricts employers access to highly educated professionals.
At the beginning of the current fiscal year, the H-1B cap dropped from 195,000 to 65,000. As a result, many U.S. employers have been unable to hire the professional staff they needoften recent graduates from the top U.S universities with Masters and PhD programs in math and the sciencesto develop new products, engage in groundbreaking research, implement new projects, expand operations, create new jobs, and compete in the global marketplace. Beginning in May 2004, the Bureau of Citizenship and Immigration Services (USCIS) began accepting applications for H-1B workers for the next fiscal year. However recent reports from USCIS indicate that, as of August 4, 2004, over 40,000 H-1B visa petitions have been filed for Fiscal Year 2005 (FY 2005) and 21,000 have been approved. If these rates continue,
it is likely that the H-1B cap numbers for FY 2005 will be used up close to the start of the fiscal year. Why is This Happening? In a number of fields, the total number of graduates with advanced degrees has not kept pace with demand. In addition, a rising percentage of the advanced degrees awarded by U.S. universities in areas of study like engineering, mathematics and computer sciences are to foreign nationals. Under current immigration law, however, many of these graduates are only able to work for U.S. companies if they obtain H-1B visas. However, the current the
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numerical cap of 65,000 does not provide U.S. businesses with enough access to highly educated foreign professionals, many of whom are graduates from U.S. universities and represent the best and brightest minds with cutting edge talents.
Complicating matters is the fact that legislation implementing the free trade agreements (FTAs) with Chile and Singapore has effectively reduced the size of the H-1B cap to 58,200 visas per fiscal yearthe most restrictive that this cap has ever been. According to the law, any numbers unused under those FTAs at fiscal years end are added back into the quota, but can only be used for adjudications during the first 45 days of the new fiscal year. Given the bureaucratic delays and inefficiencies inherent in USCIS, it remains unclear if the agency will be able effectively to add back these left over numbers to the overall cap.
What Can Be Done?
To avoid this H-1B black-out it is imperative that companies contact their members of Congress and let them know that the H-1B visa is a tool to keep the U.S. economy vibrant and jobs in America. Dont let your access to these important H-1B professionals fade away like the Cheshire cat. Contact your AILA attorney for more information on how to fight for access to the H-1B visa category.