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Big Business Can’t Yet Move the Needle on H-1B Visa Cap

By Allen Smith  3/20/2014
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Companies can’t find the skilled workers they need to fill science, technology, engineering and math (STEM) jobs, but a simple solution—raising the H-1B visa cap—has been stymied, since piecemeal immigration legislation has yet to go anywhere now that  comprehensive immigration reform has stalled.

Companies are “reaching a crisis” point in not being able to access the talent they need, reported Austin Fragomen Jr., an attorney in Fragomen’s New York City office, at the SHRM Employment Law & Legislative Conference in Washington, D.C., on March 18, 2014.. Having “twice as many applications for visas as the visa cap” is “an absurdity,” said Fragomen, chair of the Council for Global Immigration, a SHRM affiliate.

The corporate world’s appetite for workers with H-1B visas is apparent. Rebecca Peters, director and counsel for legislative affairs at the Council for Global Immigration, told SHRM Online that the H-1B visa cap is likely to be hit in the first week of filing for 2015 visas—the week of April 1, 2014.

The H-1B bachelor’s-degree cap is 65,000 visas a year, and the H-1B advanced-degree cap exemption is 20,000 a year, according to Peters.

And the 65,000 actually includes 1,400 H-1B visas for Chile and 5,000 for Singapore under a free trade agreement with each, noted Hector Chichoni, an attorney at Duane Morris in Miami. “Although the unused spots assigned to Chile and Singapore are supposed to be turned back to the general number or cap, it is extremely limiting on a year-to-year basis when there is high demand of H-1Bs. The 65,000 cap, and the 20,000, are just too low to satisfy the need of our employers today even when there is a persistent level of unemployment,” he explained.

Hope for Raised Cap

“In the past we have seen the cap increase, but only when unemployment is lower than it is today,” Peters said. “However, I hold out hope that the time could be politically right, possibly after the elections, to raise these caps sooner. If the timing proves right, we would likely see close to a doubling of our H-1 cap level and a more modest increase in the H-1B cap exemption, even though the cap exemption would be reserved just for U.S. STEM advanced degrees, a change from current law.”

In the Senate-passed immigration reform bill, “business and labor interests reached an agreement with Senate staffers to raise the H-1B cap to a new base of 115,000, adjustable up to 180,000,” said Mary Pivec, an attorney at Williams Mullen in Washington, D.C.  “In a House bill [H.R. 2131] the new H-1B annual limit would go immediately to 155,000, with the cap-exempt figure raised to 40,000 annually—but limited to STEM graduates. The political will is present to do this deal, even with the proposed increases in the H-1B prevailing wage methodology contained in the Senate bill. Unfortunately, passing just the increases in the H-1B cap would not be acceptable to big labor interests in the immigration reform coalition. To get the job done, there really has to be a comprehensive package that all interest groups have signed off on.”

But Lynda Zengerle, an attorney at Steptoe & Johnson in Washington, D.C., said, “The time for increasing that number might be right politically when the electorate realizes that their jobs will not be endangered by allowing companies to hire more individuals from abroad in specialty occupations.”

Meanwhile, “U.S. businesses—notably those in the high-tech industry—are losing their competitive advantage because there aren’t enough visas to meet the market need,” said Kevin Lashus, an attorney at Jackson Lewis in Austin, Texas. “Yes, now is the time to raise the limit.”

And Charles Bass, senior director of government law and policy at Greenburg Traurig, told conference attendees that businesses’ position on making H-1Bs more available is “very bipartisan.”

More Visa Reform

Other visa reform measures are needed, Bonnie Gibson, an attorney at Fragomen in Phoenix, told SHRM Online. “Most HR professionals would be surprised to learn that periods of authorized stay or work authorization in the U.S. and the duration of visas—the ticket necessary to enter the U.S. from abroad—are not coterminous. Visas often expire earlier than status/work authorization.

“Visa duration is subject to country reciprocity, trade agreements, and foreign-policy and security priorities,” she continued. “Before 9/11, foreign nationals with authorized periods of stay could automatically extend their visas to match the expiration of stay, but revalidation was suspended in the aftermath and remains suspended to this day. This enormously complicates international travel for many work-authorized foreign nationals, who often must go back to their home country and wait for a new visa before they can re-enter the U.S.”

Peters added that she “would like to see changes regarding spousal work authorization. Many other countries around the world allow spouses accompanying professionals to work, no matter the visa. But here, in the U.S., we don’t allow a professional’s spouse to work in every instance. It makes no sense under our laws, for example, that an L-1 worker’s spouse can work on an L-2, but an H-1B spouse cannot work on an H-4. That is a ridiculous requirement, and changing it would send a clear signal that we really want to attract and retain global talent in America.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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