H-1B visa blues — again Featured

9:48am EDT July 22, 2002

A start-up software development firm headquartered in western Pennsylvania is developing an exciting new product.

The company needs several software engineers and programmer analysts to complete product development and quickly get the software to market. In an attempt to do so, the company recruits heavily on U.S. campuses around the country, in newspapers, and of course, on the Internet.

Unfortunately, company officials find that, despite these efforts, they can’t locate enough people to fill these jobs.

The Internet recruiting does, however, reveal a group of highly skilled computer professionals — but they’re living and working in India. These people have the exact skill sets and academic background that the company needs. The human resources manager contacts them and learns that they are very interested in coming to the United States to work for the company.

The company determines that, to get them here, they need to secure an H-1B nonimmigrant (temporary) visa on their behalf. It immediately files the necessary documents with the appropriate U.S. government agencies and anxiously awaits a decision so that the company can get them to the United States and on its payroll as quickly as possible.

Three weeks later, the company receives a letter from the Immigration and Naturalization Service (INS). It indicates that the annual limitation on H-1B visas has been reached and, therefore, the company will have to wait until the beginning of the government’s next fiscal year, Oct. 1, to bring them to the United States. This is simply unacceptable in that the company officials needed these people yesterday —not Oct. 1.

The human resources manager calls the company’s attorney and says, “Wait a minute, it’s only May 15 — there are four and a half months left and they already ran out of H-1B visas? How can that be?” The attorney responds that, yes, the human resources manager is correct and that absent some necessary changes, the problem will only get worse next year.

Does this sound familiar? This is a discussion I have had with many clients this year and last — and will, in all likelihood (absent necessary changes) have again in upcoming years. Why does this keep happening? Is there a solution?

The H-1B is one of several temporary visas available to foreign nationals who are interested in living and working in the United States. This visa, specifically designed for “professionals” filing for “specialty occupations,” basically has two requirements: The foreign national must have, at a minimum, a bachelor’s degree in an academic discipline relevant to the intended position, and the position that he or she will be filling must be one that requires at least this academic background.

Assuming that these requirements can be satisfied, the petitioning U.S. employer files applications with both the Department of Labor and, thereafter, the INS. These petitions are typically processed in anywhere from three to 12 weeks and, utilizing the resultant INS Approval Notice, the employee can secure this visa status and work for this employer in the United States.

Until fiscal year 1998, i.e., Oct. 1, 1997, through Sept. 30, 1998, 65,000 H-1B visas were available every year to U.S. employers. Also until that time, this had not been a significant problem for employers in that the allotment had only been reached one time before (in fiscal year 1997) and, when it was, it was very late in the year.

This all changed last year when, on June 12, 1998 — three and a half months before the close of the fiscal year — the H-1B cap was reached. Companies had to wait until Oct. 1 to hire new employees with an H-1B visa.

This was unacceptable to the many companies in industries that rely heavily on H-1B workers for a very important — albeit small — component of their work force. As a result, these companies, assisted by numerous other organizations (including the American Immigration Lawyers Association), lobbied extensively for some relief in the form of more H-1B visas.

After an intense battle on Capitol Hill, these efforts came to fruition when Congress passed legislation increasing the number of H-1B visas from 65,000 to 115,000 in fiscal year 1999. Although the number of visas is to decrease again in the upcoming years, employers breathed at least a temporary sigh of relief with these much-welcomed developments.

This relief did indeed turn out to be very short-lived. Despite an increase of 50,000 visas, the INS ran out of H-1B visas this year by April 9, more than a month earlier than last year. As a result of the building demand for H-1B visas in the next fiscal year (the INS has announced that 40,000 people are “in line”), it’s likely that next year’s quota will be exhausted by the end of December.

Why is this happening? The answer is that, for whatever reason, there are simply not enough U.S. citizens/permanent residents to meet the intense demand for these positions. According to a report issued by the U.S. Department of Commerce, the average annual growth rate for computer systems analysts, computer scientists and computer engineers will top 100 percent by the year 2006.

That means more than 1.3 million new IT workers will be needed to fill job openings and replace workers leaving the field. According to the Information Technology Association of America, this translates to a shortage of 346,000 programmers, systems analysts and computer scientists in the United States in 1998.

Who will fill these jobs? Not U.S. workers. According to a report prepared by the American Electronics Association, high-tech degrees — including engineering, math, physics and computer science — declined 5 percent between 1990 and 1996. Preliminary findings from 1997 and 1998 indicate this trend is continuing.

William Archey, president of that association, stated, “Although there are some bright spots in the ... results, the bottom line is that the U.S. educational system is not adequately preparing our youth for today’s information age economy.”

Of the students in the U.S. who are preparing for technical careers, more and more are foreign nationals. Although foreign nationals earned only 7 percent of technical degrees at the bachelor level in 1996, they secured 32 percent of the master’s degrees and 45 percent of the doctorates. While U.S. students are starting to take more math and science courses at the primary level, they still rate poorly among industrialized countries.

According to the Third International Mathematics and Science Study completed last year, U.S. seniors placed 19th in math and 16th in science out of the 21 countries tested.

So, what is the answer? In my opinion, it’s two-fold. First, we must somehow do a better job of preparing students in the United States to go into these fields. Congress recognized this when, as part of last year’s “deal” to increase the number of H-1B visas, it began requiring employers seeking H-1B visas to pay a $500 surcharge on each petition.

This will be paid into a scholarship fund to train U.S. workers. Although it’s still too early to tell how successful this program will be, it is certainly a step in the right direction.

This is, however, only part of the long-term solution. Training junior high school students in math and science will not help high-tech companies who need computer professionals today. As things now stand, these companies have only one answer — securing H-1B visas for these highly skilled foreign national professional workers.

But to do so — and, as a result, continue to fuel our country’s ongoing economic growth — we must increase the allotment of H-1B visas. Although this may not be our best long-term solution, it’s all we have now to solve this very serious problem.

Please contact your legislators and, perhaps pointing to your own example, urge them to address this problem by increasing the annual allotment of H-1B visas.

Lawrence M. Lebowitz is a partner/director with Pittsburgh law firm Cohen & Grigsby, P.C.