H-1B Advice for Students and Their Employers

USCIS statistics reveal that only 1,000 H-1B "cap-subject" petitions were submitted each week during the second, third and fourth weeks of April. See

http://shusterman.com/toc-h1b.html#1

At this rate, there will be H-1Bs available until sometime in September. However, I do not believe that this will be the case. Why not?

Because, there are hundreds of thousands of F-1 students in the U.S. Many of these students will graduate from U.S. universities this June, and seek to work in the U.S.

Regarding employment in the U.S., these students should consider the following:

1. They may apply for Optional Practical Training (OPT). This is a fancy term for a one-year work permit. Under certain circumstances, the term of OPT may be extended for an additional 17-months. See

http://shusterman.com/toc-student.html#3

2. If the student's job offer requires a university degree of the type that he/she possesses and if the employer pays them at the prevailing wage, the employer can petition them for H-1B status as soon as the student obtains the required degree. Savvy employers will hire the student initially on OPT and ask the USCIS to change the student's status to H-1B beginning on October 1, 2009.

Why should students seek H-1B status in 2009 if their OPT work permits are valid until 2010?

The principle reason is that this year there are almost 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 50%. The same thing could happen in 2010 leaving many students high and dry.

I predict that the H-1B petition submissions will rise significantly in June. Therefore, F-1 students who wish to work in the U.S. need to plan ahead.

When is a good time for their future employers to seek the approval of labor condition applications and prepare H-1B petitions for submission to the USCIS?

A good time would be now.

H-1Bs: Let the Market Decide the Number of Working Visas

Back in 1982, when I left the INS to enter private practice, the number of H-1 visas was unlimited. All professionals, including registered nurses, were eligible for H-1 visas. Also, there was no maximum duration for H-1s. U.S. employers could petition for H-1 workers all year long, yet the program did not generate the amount of controversy that it does today. It was a market-based system which allowed U.S. employers to fill jobs in a global economy, plain and simple.

The Immigration Act of 1990 ushered in the present era of government control of “H-1B” temporary visas. For the first time, a numerical cap (65,000) was imposed along with a maximum duration of stay (6 years). Registered nurses were banished from the category.

All of this has proven to be a nightmare. Every few years since 1990, Congress has had to step in to change the numerical cap (to 115,000, then to 195,000, then back to 65,000), to create exemptions to the cap, establish a “cap-dependent” category and to allow persons to exceed the six-year maximum under certain circumstances. The result is a crazy-quilt system that only a lawyer could love. Employers don’t understand the nuances of the law and the many memos interpreting it. Neither do the visa holders. Often, the agency itself misinterprets the law.

In my opinion, the complexity of the law serves to facilitate abuses by unscrupulous employers. Yet, there are those in Congress who seek to make the law even more complex!

Before Congress acts, it may be wise to examine what happened this year in an economy mired in recession. Employers submitted fewer than 42,000 regular cap petitions in the first week of availability compared with over 163,000 petitions submitted during the same period last year. This despite the fact that many students working using Optional Practical Training (OPT) who lost out in the “H-1B Lottery” last year were petitioned again this year. Also, new USCIS restrictions on “cap-exempt” petitions forced many employers to submit “cap-subject” petitions this year. See

http://shusterman.com/toc-h1b.html#1
The main lesson to be learned is that the market worked. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys’ fees and government filing fees.

Further, according to Vivek Wadhwa of Harvard Law School, skilled immigrants have fueled our tech boom. Over half of Silicon Valley tech start-ups and a quarter of those nationwide were founded by immigrants from 1995 to 2005. In 2005 alone, these companies generated $52 billion in revenue and employed 450,000 workers — a number greater than the number of H-1B workers in the tech industries over the prior 10 years combined.

Congress should stop trying to micro-manage the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers.

At last, I fear that my advice may fall on deaf ears. Therefore, employers, H-1B workers and their attorneys, seeking to navigate the current complex system, can search our “H-1B Page” which contains almost 100 links to information about this most-complicated of all temporary working visas at

http://shusterman.com/toc-h1b.html