The Fisca
l Year 2016 H-1B random selection process for skilled workers is over. As with many other immigration lawyers around the country, I am dealing with employer fallout over the loss of badly needed skilled professionals whose petitions weren’t selected. Many of these would-be H-1B beneficiaries are already working for the employer in a status called Optional Practical Training. Optional Practical Training is an employment authorized status permitted for 12 to 29 months after graduation from an accredited U.S. university.
This post addresses the plight of U.S. based employers who produce products and services for the U.S. economy including legitimate management consulting firms who work with clients to install and improve management technology and go on to new projects. These employers are to be distinguished from the perceived type of employer mentioned in recent New York Times pieces. While the entirety of those situations aren’t yet known, what I do know is this: the H-1B visa was not intended to displace U.S. workers and there are regulatory safeguards in place. In fact, the H-1B visa has contributed to the productivity of many employers in ways that have then led to many more jobs for U.S. workers.
It is hard to tell an employer that a star employee will no longer be authorized to work for them in the U.S. They don’t understand how random and arcane the process is, particularly that this year there were only enough H-1B visas available to cover about 25% of the 233,000+ petitions filed for fiscal year 2016.
I’ve worked on a number of H-1B cases over the years and the employers I work with are doing their best in a confusing process. Here’s an example – one client requires a special skill set offered in a program at a top rated university. In recruiting at this institution, they discovered that only one US worker was enrolled in the program, so hiring a U.S. worker with the skills required is virtually impossible from the outset.
Other employers are scrambling looking for alternative work visas and when that fails, to figure out the legalities of contracting for remote services to be performed abroad for key employees. These are but two of thousands of compelling examples of what U.S. employers are dealing with. I’ve had multiple employers tell me that if they could find US workers to fill their open positions, they would gladly hire them and avoid this “visa morass.”
More than half of the H-1B petitions filed are for occupations in the STEM (Science, Technology Engineering and Mathematics fields). Many of those whose employers have applied for them graduated from U.S. universities with STEM degrees! According to the Institute of International Educational Exchange, two thirds of foreign students studying at US universities are pursuing degrees in STEM or business fields; 84.8% of them have attained U.S. Master’s or Doctorate Degrees. Now that we’ve educated them, shouldn’t we do our best to keep them in the U.S. to become job creators?
Today, the U.S. is in an international fight to maintain hegemony in innovation and technological advances. These highly skilled foreign students that we have educated can pick from a number of welcoming countries nipping at our heels to pass us as the world’s leading innovators. They are a significant – and vital – part of our continued growth in cutting edge industry; indeed, according to Todd Park, the former U.S. Chief Technology Officer, every foreign-born graduate with an advanced STEM degree is associated with, on average, 2.6 jobs for American workers. And, by some estimates, according to Mr. Park, immigration was responsible for one-third of the growth in patenting in past decades; these innovations contributed to increasing U.S. GDP by 2.4 percent.
The problem with the H-1B shortage stems from the Immigration Act of 1990 (Immact 90). For the first time, annual numeric caps were imposed on the H-1B visa initially permitting a limit of 65,000 visas per year. What appeared to be a generous figure in 1990 soon became a huge headache for employers. In 2000, the American Competitiveness in the 21st Century Act exempted certain non-profits, primarily institutions of higher education and governmental research groups from the cap. It also temporarily increased the H-1B cap to 195,000 for FY 2001 through 2003. This was an acknowledgement that the existing H-1B cap was woefully inadequate and one can only conjecture that it was anticipated that by the end of this cap increase, a solution to the problem would be forthcoming. It was not. After the H-1B returned to the draconian limit of 65,000, a permanent increase of 20,000 for holders of U.S. Masters Degrees was enacted. A total of eighty-five thousand H-1B petitions is still woefully inadequate for our nation’s increasing demand for highly educated workers, especially in the STEM fields.
Static numerical limits for visas and green cards are fraught with problems. A fixed numerical cap established almost 25 years ago doesn’t anticipate the needs of a growing economy. Another example of short-sightedness in visa limitations can be seen in the green card context. The Immigration Act of 1990 also abolished the old employment-based 3rd and 6th immigrant visa system and set up a five tier employment-based system with increased immigration numbers. Again, many of these categories have become badly backlogged over time, particularly for those chargeable to the India and China country quotas.
A reform of our current system is badly needed if we are going to continue to retain the talent that we educate and utilize their abilities to help our economy’s growth. Every day, week, month, and year that goes by and Congress doesn’t pass immigration reform is another day, week, month, and year where our nation stagnates instead of grows.
Written by Deb Notkin, AILA Media-Advocacy Committee Vice Chair and former AILA President