In 1990, Congress created a cap on
H-1B visas that limited the number of
college-educated foreign workers who could come in and work for American companies for up to six years.
The cap was set at 65,000, and all was
well until the Immigration and Naturalization Service (INS), now called
the U.S. Citizenship and Immigration
Services (USCIS), saw the cap limit
reached in 1997, due in part to the IT
industry boom. In 1998, the department
increased the cap to 115,000 while the
number of applicants continued to rise.
The cap was increased in 2001 to
195,000 before it was returned to its pre-1999 number of 65,000 for fiscal 2004 to
the present.
“Today, USCIS sees the maximum
number of petitions filed before the
start of each fiscal year,” says Tiffany
Baldwin, a senior associate and a member of the immigration practice group at
Greensfelder, Hemker & Gale. “In April,
during the first week of filing for fiscal
2009, USCIS received approximately
150,000 petitions for the 65,000 slots.”
Smart Business asked Baldwin what
companies can do to get the employees
they need.
Are all nonimmigrant visas capped out?
No, most are not. We allow an unlimited number of students to come to our
universities. There’s a special visa for
managers and executives from international corporations that are coming
here, and there’s no limit on that. The
problem is that the two most popular
visas have limits. The H-1B for professional workers and the H-2B for seasonal workers, such as landscapers,
both have limits, and that is a huge
problem.
Why does the government feel it necessary
to put a cap on the visas?
Initially, there was a fear of foreign
workers taking jobs from workers in
America. Congress felt the caps were
necessary because there were more applicants than positions available.
Plus, H-1Bs were cheap and relatively
fast and easy to get. The filing fee was
reasonable and the applications could
be processed fairly quickly. Now,
there’s a huge disincentive for employers to petition for an H-1B. The filing
fees alone can be more than $2,000 and
then you have attorney fees and a minimum salary requirement at which to
start the employees. This could mean
that the employer might have to pay
that employee a little bit more than
someone it could have hired from this
country.
Are visa caps still necessary?
There are a lot more financial and
administrative hoops that employers
have to jump through today, so the cap
doesn’t really serve its purpose anymore. There are a number of other safeguards in place to protect both the U.S.
workers and the system in general. On
the other hand, H-1Bs are a complete
necessity in our economy because our
computer science and engineering departments are a lot smaller than they
were even a decade ago. Fewer American kids are going into those fields, and
employers have to get their workers
from someplace. So, if we are going to
continue to have caps, they must be tied
to market needs. The number 65,000 is
so arbitrary; it’s like they pulled the
number out of thin air. It’s not based on
anything.
Most H-1B professions, because we
are talking about professional fields,
not unskilled labor, tend to be low
unemployment professions. In fact,
some of those H-1Bs are going to professions for which we have a general
shortage, such as physical therapists.
Most people believed it was best to let
the market determine if and how many
foreign workers were needed. If we
don’t let the market decide, then I think
the practical solution is to break the
H-1B down into various industries and
then give that industry its own cap number that is based on unemployment
rates and business needs.
Do you see U.S. companies going outside
the country since the number of employees
allowed in is restricted?
Yes. Google recently started moving
some of its operations to Canada. The
European Union has developed the
Blue Card that will allow highly skilled
workers and their families to move easily between EU countries and jobs. So
we may see a lot of competition in areas
we used to dominate, especially in the
field of IT because the EU is taking a
more reasoned approach.
Are there alternatives to the H-1B?
Depending on the job and the company, there are some good alternatives,
such as a parallel to the H-1B called the
E3, which is just for Australian citizens.
There is also the TN visa for professionals in Canada and Mexico.
TIFFANY BALDWIN is a senior associate and a member of the immigration practice group at Greensfelder, Hemker & Gale. Reach her
at (314) 516-2617.
