By JOHN L. PINNIX
March madness has a unique meaning for businesses trying to staff often hard to fill professional slots, for foreign nationals with advanced academic attainment who want to live and work in the U.S., and for their immigration attorneys.
For millions, March is the run-up to the NCAA finals; but for the previously enumerated reasons, March is the eve of an arbitrary and increasing arcane filing process that determines which chosen few foreign nationals will be eligible for long-term employment in the U.S. using an H-1B nonimmigrant visa.
The H-1B classification permits U.S. employers to sponsor foreign nationals on a temporary basis for professional positions in “specialty occupations.” The regulations define specialty occupations as those requiring theoretical and practical application of a body of highly specialized knowledge; they include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts. The occupations must require at least a bachelor’s degree.
A quarter century ago, the Immigration Act of 1990 (IMMACT90) first limited (“capped”) the number of new H-1Bs available for U.S. employers. The statutory number of new H-1B visas was 65,000 per annum, with an additional 20,000 H-1B visas available for individuals who attained a U.S. master’s – or higher – academic degree. Certain not-for-profit research positions and positions at qualifying colleges and universities are cap exempt.
The cap was set arbitrarily and enacted without much thought and the number was set substantially higher than the annual H-1B filings occurring at the time of enactment. The cap was not reached during its early years. In the run-up to the anticipated Y2K crisis, the cap was temporarily raised to 115,000 and eventually to 195,000 (fiscal years 1999-2003).
Approved H-1B petitions, for new cap-subject positions, permit the foreign worker to begin employment at the beginning of the federal fiscal year – Oct. 1. Petitions may be filed six months prior to the start of the fiscal year (April 1, unless it occurs on a weekend).
For many years, the number of new H-1B filings has exceeded the cap at some point in the year. During economic downturns fewer H-1Bs are filed – likely due to both the costs involved with the process and a myriad of other considerations driven by the economy. The last decade is illustrative:
- In FY 2006, H-1Bs visas were available until Aug. 10, 2005 – 131 days from the April 1 filing date
- In FY 2010, H-1B visas were available until Dec. 29, 2009 – 264 days from the April 1 filing date
- In FY 2011, H-1B visas were available until Jan. 26, 2011 – 300 days from the April 1 filing date
- As the economy recovered the picture changed radically. In 2014, H-1Bs visas were available for only 4 days, from the April 1 filing date just until April 13, 2013.
Substantial preparation precludes a last-minute decision to file an H-1B petition. Before filing an H-1B with U.S. Citizenship and Immigration Services (USCIS), the preparer must obtain a valid prevailing wage survey; academic credentials must be evaluated if foreign degrees are relied on in order to determine their equivalency to a degree from an accredited U.S. college or university; foreign language documents submitted with the H-1B must be translated into English by a certified translator; approval of a Labor Condition Application (LCA) must be adjudicated and certified by the U.S. Department of Labor, and so forth.
H-1B petitions will be rejected by the USCIS if they are submitted for delivery prior to the first day of the filing period. “If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days after the initial filing date), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first.”; 8 CFR §214.2(h)(8)(ii)(B). Consequently, if the cap is reached (the 65,000 and the 20,000), all cap-subject petitions received during the first five business days will be included in a random computerized lottery to determine which petitions will accepted for processing. In 2015, approximately 233,000 petitions were received during the first five business days for the 85,000 available new H-1Bs. Petitions that are not selected through the lottery are returned along with the uncashed filing fee.
It isn’t surprising that H-1Bs, already controversial, are also becoming politicized. Significant congressional opposition is led by U.S. Sen. Charles Grassley, R-Iowa, a long-time die-hard opponent of the H-1B program; among his reasons are alleged fraud.
H-1B supporters maintain that the numbers of H-1B workers are statically insignificant to adversely affect American employment, that there are not enough U.S. workers to fill STEM (science, technology, engineering and math) positions, and that professional immigration actually increases jobs for U.S. workers.
The 2016 presidential candidates are split, albeit not along the usual party lines, regarding their support for, and the future of, the H-1B program. Donald Trump and Bernie Sanders are critical of the H-1B program. Marco Rubio sides with Silicon Valley and supports increasing the number of new H-1B visas to 110,000 per annum. Ted Cruz has favored a 500 percent increase in the cap; Cruz cites a study by the American Enterprise Institute finding that for every additional 100 H-1B workers, 183 jobs are created for U.S. citizens. Hillary Clinton’s position has been nuanced, morphing to meet business needs as economic conditions have changed.
To date the H-1B program hasn’t captured voters’ attention like Trump’s call for a 1,954-mile wall or banning Muslims from the United States. That could change. On Jan. 25, two suits seeking class action status were filed against Walt Disney World and two global consulting firms alleging RICO violations.
The New York Times’ Julia Preston writes that the plaintiffs, laid off by Disney, claim the defendants broke the law, using temporary H-1B visas to bring in immigrant workers, knowing that Americans would be displaced and that the soon-to-be discharged workers were required to train their own replacements. After one plaintiff was laid off, Preston writes, “she applied for more than 150 other jobs at Disney. She did not get one.” Dena Moore v. Cognizant Technology Solutions and Walt Disney, Case No. 6-16-cv-113-ORL-28KRS, United States District Court for the Middle District of Florida (January 25, 2016). Leo Perrero v. HCL Technologies Limited Corporation and Walt Disney, Case No. , United States District Court for the Middle District of Florida (January 13, 2016).
To date, approximately 30 former Disney workers have filed complaints with the federal Equal Employment Opportunity Commission, claiming that they faced discrimination as American citizens. Disney maintains the “lawsuits are based on an unsustainable legal theory and are a wholesale misrepresentation of the facts.” In response, U.S. Sen. Bill Nelson, D-Fla., introduced legislation to reduce the H-1B quota to 70,000.
Immigration experts are not hopeful that Congress will soon take a common-sense approach to the H-1B visa program, even though U.S. businesses are unable to find qualified U.S. workers. A lack of qualified U.S. citizen workers and a lack of available non-immigrant workers results in U.S. businesses suffering and failing.
On the other hand, on Dec. 31, 2015, USCIS published proposed rules codifying agency policy regarding aspects of immigrant and nonimmigrant visas, including H-1Bs, some of which go back two decades. 80 FR 251 (Dec. 31, 2015).
Jack Pinnix is a past president of the American Immigration Lawyers Association (AILA) and a senior partner in the Raleigh-based law firm Allen & Pinnix, P.A. Pinnix is a North Carolina Board Certified Specialist in Immigration Law.