Tag Archive for: H-1B Lottery

Cyrus Mehta

Eliminate the H-1B and  Green Card Caps!

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By Cyrus D. Mehta and Kaitlyn Box*

On July 27, 2023, USCIS announced that it will conduct a second round of selections for the FY 2024 H-1B lottery. An alert posted on the USCIS website stated that “We recently determined that we would need to select additional registrations to reach the FY 2024 numerical allocations. Soon, we will select additional registrations from previously submitted electronic registrations using a random selection process. We will announce once we have completed this second selection process and have notified all prospective petitioners with selected registrations from this round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.” Attorneys have been notified of additional selections through their myUSCIS accounts throughout this past weekend.

Anecdotally, we have found that the selection rates in this second round of the H-1B lottery for some of our clients is slightly better than the selection rates in the first round. Still, selection rates in for this year’s lottery were much lower than those observed in prior years, and USCIS indicated that this was the result of a striking increase in the number of registrations, including multiple registrations for the same beneficiary. USCIS further acknowledged that “large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary”, and committed to investigate and combat fraudulent registrations. When so few registrations were initially selected in this year’s lottery, news of a second round of selections likely comes as welcome news to prospective beneficiaries and U.S. employers alike. However, this additional round of selections is not the victory it seems because it is merely a reflection of an inherently flawed system.

In previous blogs, we have advocated for the abolishment of the H-1B lottery, which in turn means that the H-1B cap should be abolished. If there is no cap, there is no need for a lottery. The lottery is an arbitrary and whimsical system that needlessly prevents U.S. employers from employing highly-skilled foreign workers they want that would help them remain competitive and profitable.  In industries like tech and finance, there are an insufficient number of qualified U.S. workers to fill available positions. The fact that the number of registrations far outstrips the number of available visas is a function of the market and illustrates the level of demand for highly-skilled foreign workers. When the American Competitiveness in the 21st Century Act (AC 21) increased number of available visas to 195,000 in 2000, the cap was never reached. Artificially limiting the number of new H-1B petitions that can be filed in a fiscal year is thus not only a point of frustration for prospective beneficiaries, but also detrimental to the needs of U.S. businesses. The cap’s detrimental impact on U.S. business interests is amplified by the fact that other countries have begun implementing more favorable programs for holders of U.S. H-1B visas. As analyzed by David Isaacson in a recent blog, Canada announced a measure in June 2023 that will allow U.S. H-1B visa holders to “apply for a Canadian work permit, and study or work permit options for their accompanying family members”. The Canadian program styled as the “H-1B visa holder permit” is indeed unique as it has targeted the visa program of another country in the global competition for talent.  By needlessly restricting the flow of highly-skilled workers into the country, the U.S. may soon begin to lose top talent to competitor countries.

Opponents of ending the H-1B lottery or increasing the cap sometimes suggest that the program is a source of cheap labor, and allowing more highly-skilled foreign workers to take up jobs in the U.S. would harm the employment prospects of U.S. workers. However, this contention is without merit. In a previous blog on this topic, we discussed a Center of Growth and Opportunity paper which found that highly-skilled foreign workers are “paid a wage premium of 29.5 percent” in comparison to similar U.S. workers. Another more recent Cato Institute study indicates that H-1B wages are in the top 10% of US wages.  Moreover, as outlined above, there are insufficient qualified U.S. workers to meet the demands of employers in many industries. Rather than disadvantaging U.S. workers, highly-skilled foreign workers fill an important need in the market and allow U.S. businesses to remain competitive. Their employment in the US economy results in job creation too.

Another often-raised objection is that limiting the number of H-1B workers will help to alleviate the green card backlog. However, any noncitizens currently waiting in the employment-based green card backlogs are already the beneficiaries of I-140 petitions and have a priority date. In order to be eligible to commence the green card process, a new H-1B worker would need obtain sponsorship by an employer, who would file a labor certification and I-140 petition on his behalf. The new H-1B worker would thus be assigned a later priority date, having no impact on anyone already in the backlog. Additionally, other types of nonimmigrant visas, such as L-1s and TNs, are not subject to a quota. If there is no concern about nonimmigrant beneficiaries of these visa types contributing to the green card backlogs, the same should be true of H-1B workers.

In reality, the green card backlog and the H-1B lottery are both parts of the same flawed quota system. Although the announcement of a second round of selections for the FY 2024 H-1B lottery may seem like cause for celebration, it is in fact a hollow victory for prospective H-1B workers and U.S. employers alike.

We call for the elimination of the H-1B caps as well as caps in the employment-based and family-based immigration categories. And we also call for the elimination of country caps. This is something that Congress can only do and should do on an urgent basis.  There is no need to discriminate based on where a person is born, and per country limits become wholly irrelevant if there is no overall cap in any particular family or employment-based category.  Caps and lotteries have no place in a modern immigration system. There are no caps for TN, L-1, O, P and R visa, and yet life goes on. The nonexistent caps in these nonimmigrant work visa categories do not result in the undermining of the US economy or the taking of US jobs. So why should the H-1B visa program be hobbled with an artificial cap of 85,000?   When the unemployment rate is 3.6%, the US can only benefit with the skills, talents, creativity and enterprise of foreign workers who desire to succeed in the US for themselves and their families. Indeed, all immigrants who come to the US under the employment and family based systems can potentially benefit the US.  The US is also not the only game in town as Canada has begun to directly compete with the US for talent. There is no need for foreign workers to remain in the US under a flawed and broken immigration system when another country’s system is more rational, fair and dynamic. Due to the green card backlogs they are forced to remain in the same jobs and not advance through promotions or form their own startups.   Eliminating caps in the H-1B visa and the employment and family based green card categories will be a step in the right direction!

 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

Cyrus Mehta

End the Arbitrary H-1B Lottery and Visa Quotas – and other practical considerations for the winners!

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By Cyrus D. Mehta and Kaitlyn Box*

On March 30, 2021, USCIS announced that it had received sufficient H-1B registrations during the initial period to reach the Fiscal Year 2022 cap, including Master’s Cap registrations. All prospective petitioners whose registrations were selected should now have been notified. These petitioners may file H-1B petitions for the selected beneficiaries beginning on April 1, 2021.  At this time, many petitioners are seeing that less than 1/3 of their registrations have been selected, a remarkably low selection rate.  The selections for a total of 85,000 H-1B slots were made out of a record number of what is believed to be over 300,000 total registrations.

This lottery system is an unfair barrier to U.S. employers who rely on the H-1B visa program to employ highly-skilled workers. Subjecting employers to the game of chance that is the H-1B lottery renders the process of planning for the future and meeting staffing needs unnecessarily complex for U.S. employers, particularly when the selection rates are as low as this year’s selection numbers. In fields like the tech industry, where the need for highly-skilled workers exceeds the number of qualified U.S. workers, the unduly restrictive cap numbers hinder companies from being able to meet demand and remain competitive in the global market. It is also highly unfair for both employers and the foreign workers they wish to hire to first be fortunate enough to be selected in a lottery, and then have to wait until October 1 to commence employment.

The only way to ensure that the United States continues to attract the best and brightest talent worldwide is to eliminate quotas and lotteries from the H-1B program. As discusses by Stuart Anderson in a recent Forbes article, highly-skilled noncitizen workers promote innovation and economic growth in U.S. markets. Even the oft-maligned IT consulting companies, which employ high numbers of H-1B workers, serve a critical role in the U.S. economy by providing reliable and inventive IT solutions to U.S. companies. Employing H-1B workers allows consulting companies flexibility, as well as the ability to provide top talent at affordable rates and respond to changes in the market. Though sometimes pejoratively referred to as “job shops”, IT consulting companies, in truth, promote ingenuity by providing a source of technical expertise that can quickly respond to the evolving needs of the U.S. market.

Some have suggested that the solution is to allocate H-1B visas to the highest wage earners but this system, articulated in the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, worsens the problems with the H-1B visa program rather than solving them. As we have discussed in a prior blog, a wage based preference system would practically foreclose numerous categories of noncitizens workers who are highly skilled but do not earn overly high salaries from pursuing the H-1B visa as an option. Entry level workers, for example, including talented graduates of U.S. universities, have the potential to greatly contribute to the U.S. economy over the course of their career, but are not likely to be paid extremely high wages. Entrepreneurs who start their own companies bring innovative businesses to the United States and create jobs if they are successful, but their startups may not be able to afford to pay them an overly high wage. Similarly, employees of non-profit organizations tend to command modest salaries, but perform meaningful and significant work in the United States. Allocating H-1B workers to the highest earners will, in the long run, deter highly-skilled noncitizens from pursuing employment in the United States, which will be detrimental to the United States’ economy and competitive advantage in the global market. And even if the lottery is skewed towards those offered the highest wages in the occupation, it still continues to remain a game of chance.

Although some affiliated with respectable think tanks like the Economic Policy Institute attack the H-1B as a source of cheap labor, they are wrong. Daniel Costa and Ron Hiro of the Economic Policy Institute, for example, suggest that H-1B employers “use the program to pay migrant workers well below market wages”, but a recent Center of Growth and Opportunity paper suggests that skilled immigrants holding temporary work visas have a wage premium of 29.5 percent compared to similar natives. H-1B lotteries, whether quota or wage based, limit the United States’ ability to attract the most skilled foreign workers. Those who are truly concerned for the wellbeing of the U.S. economy understand the key role that highly skilled foreign workers play and would want to encourage top talent from all over the world to come to the United States. One obstacle to H-1B workers was already removed when Proclamation 10052, which suspended the entry into the U.S. of many H-1B and other nonimmigrants, was allowed to lapse on March 31, 2021. This Trump-era ban further obstructed the flow of skills into the United States. Ironically, it also impeded the ability of last year’s lottery winners to come to the United States but this year’s winners with approved H-1B petitions will not be impacted by the Proclamation and last year’s winners may also seek visa appointments. Even with the expiration of the Proclamation, however, it is unlikely that H-1B visa applications will immediately begin being processed, as many U.S. consulates are still not fully operational due to the pandemic. DOS will prioritize the applications of applicants who have not yet been interviewed or scheduled for an interview, and invites individuals who were refused a visa due to the Proclamation to reapply.

Abolishing the H-1B lottery is the surest way to ensure free entry of talented and skilled workers into the United States.  The reason for the lottery is because there is an arbitrary limit of 65,000 visa and an additional 20,000 for master’s degree holders that have no bearing on economic reality.  Similarly, these same H-1B workers who get sponsored for green cards are subject to unrealistic quotas in the India EB-2 and EB-3s resulting in decade long backlogs, thus depriving them of obtaining permanent residency. There is no basis for quotas on H-1B visas or immigrant visas. As pointed out in a Forbes article, unemployment rates in H-1B occupations like computer and mathematical fields were only 2.4% at the beginning of 2021, illustrating that H-1B employees are not pushing U.S. workers out of the labor market. Lotteries and quotas have no place in a modern immigration system. There should be a free flow of skills and talent into the US.

It remains to be seen whether another H-1B lottery will be conducted in August, as was the case last year. If the case was selected under the lottery, the online account will indicate “Selected.” If the case shows “Submitted,” it means that it is still eligible for selection in a subsequent lottery during this fiscal year. If it shows “Denied” it means that multiple registrations were submitted for the same registrant. If the payment was declined it will show “Invalidated-Failed Payment.” In the meantime, petitioners who were selected can begin filing Form I-129 from April 1 to June 30, 2021. They will only be eligible to start employment in H-1B status on October 1, 2021, and if the foreign national is in the US they must ensure that they are maintaining status.  Those who are on F-1 Optional Practical Training, and if their OPT will expire prior to June 30, 2021, should file the I-129 prior to expiration so that they can take advantage of the Cap Gap till September 30, 2021. USCIS will begin accepting exclusively the new (3/10/2021) version of Form 1-129 on July 1, 2021. Until then, older versions of the form may still be submitted. Also note that Question 5 in Supplement H on page 13 of Form I-129 must be completed for H-1B Cap-subject petitions.

(This blog is for informational purposes and should not be considered as a substitute for legal advice)

 

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

President Biden Must Reject Trump Era H-1B Lottery Rule and Work Visa Travel Ban

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By: Cyrus D. Mehta and Kaitlyn Box*

On March 3, 2021, Democratic Senator Dick Durbin and Republican Charles Grassley submitted a letter to new DHS Secretary Alejandro Mayorkas urging the DHS to implement the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, which was published in the Federal Register on January 8, 2021. The final rule would replace the current H-1B lottery system with a preference-based system that prioritizes workers earning higher wages. Originally set to go into effect on March 9, 2021, implementation of the rule was postponed until at least December 31, 2021.  It is a shame that Senator Durbin would throw his support behind a clearly ultra vires regulation of the Trump era that is designed to hurt small businesses, start-up companies and keep the U.S. from retaining the best and brightest foreign students from entering the U.S. workforce.   If allowed to go into effect during this year’s H-1B lottery, the rule will have a devastating impact on international students, entry-level workers, and employees of non-profits, all of whom tend to earn modest salaries.

The Biden administration’s welcoming immigration policies have been a breath of fresh air, but one must keep in mind that certain members of the administration disfavor the H-1B visa program, viewing it erroneously as a source of “cheap labor” that threatens the interests of U.S. workers. The H-1B visa indeed requires employers to pay the higher of the prevailing wage or actual wage paid to similarly situated workers in the company.  Distrust of the H-1B program could explain why President Biden selectively rescinded Proclamation 10014, but not Proclamation 10052, which restricts the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the Proclamation, June 24, 2020, and are seeking to obtain an H-1B visa, among other categories. We have discussed Proclamation 10052 in detail in a previous blog. In its last days, the Trump administration extended Proclamation 10052 to March 31, 2021.

Given the tremendous hardship it causes to noncitizens subject to the ban, the Biden administration ought to allow Proclamation 10052 to expire on March 31 rather than further extending it. Better still, the Biden administration should rescind it even before March 31 as every day causes hardship to those who have been adversely impacted. The affirmative rejection of 10052 would symbolically also demonstrate that Proclamation 10052 is based on the same xenophobic premise that led to the rejection of Proclamation 10014.  The Proclamation already conflicts with several of the Biden administration’s early immigration policies. Proclamation 10052 was based on the same tired and xenophobic narratives as Proclamation 10014, which Biden has already rescinded.  Section 5(c)(iii) of the Proclamation, which aims to prevent “aliens” (a term the Biden administration has pointedly avoided using) with final orders of removal from obtaining eligibility to work in the United States does not comport with Biden’s new priorities memo, which would allow such noncitizens to seek work authorization under an order of supervision. A provision at Section 5(b) in Proclamation 10052 requires measures to prevent noncitizens seeking admission under the EB-2 or EB-3 categories from disadvantaging U.S. workers under INA 212(a)(5)(A). Biden’s February 2, 2021 Executive Order entitled “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”, on the other hand, lauds the contributions of immigrants to the U.S. economy and promised to reduce barriers to naturalization.

Biden’s U.S. Citizenship Act of 2021 also reflects a certain reluctance on the part of the Biden administration to address the H-1B visa program. The sweeping bill is largely favorable to immigrants, featuring as its keystone a path to legal status for undocumented noncitizens who were present in the United States as of January 1, 2021. The bill also endeavors to reduce the backlogs in the employment and family based categories by adding additional numbers and not counting dependent family members, among other ameliorative measures.  However, the bill had comparatively little to say about H-1B visas. One of the few provisions that did address the program empowers DHS to “issue regulations to establish procedures for prioritizing such [nonimmigrant] visas based on the wages offered by employers”, which concerningly echoes Trump’s H-1B lottery rule. While the issuing of more green cards to skilled workers is indeed welcome and absolutely necessary, there also needs to be a complimentary work visa program that allows employers to quickly employ much needed skilled workers and which also provides a bridge to the green card. Also another glaring lacuna in the bill is the absence of the much needed startup visa that would incentivize foreign national entrepreneurs to found companies in the US, which in turn could grow and create jobs for Americans in addition to creating paradigm shifting technologies.

If the Biden administration truly wishes to act in the best interest of the U.S. economy it must reject the idea, whether it is championed by opponents of skilled immigration on the left or the right,  that H-1B workers are a threat to the United States. The administration must seek to delay the implementation of the H-1B lottery rule and rescind it notwithstanding Senator Durbin’s support for it. Indeed, Senator Durbin, teaming up with known immigration foe Senator Grassley (who has never repudiated Trump),  has been a constant and irrational foe of the H-1B program for over two decades and his opposition to the H-1B is not a reasoned voice and lacks credibility. Proclamation 10052 also does not benefit U.S. workers by separating talented H-1B employees from their families and preventing them from performing critical jobs in the United States. As Stuart Anderson points out in a recent Forbes article, many H-1B workers are employed in the computer and tech field, which has not seen significant increases in unemployment during the COVID-19 pandemic. In fact, large numbers of positions remain open in this field and would likely go unfilled without highly skilled H-1B workers. With no cogent economic justification remaining to support it, it is hoped that Proclamation 10052 soon goes the way of Proclamation 10014.

According to an earlier Forbes article,  “H-1B visas are important because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United Sates and have the chance to become employment-based immigrants and U.S. Citizens. In short, without H-1B visas nearly everyone from the founders of billion-dollar companies to the people responsible for the vaccines and medical care saving American lives would never have been in the United States.”. The H-1B lottery rule, if implemented, will clearly provide a disincentive for international students to pursue higher education in the US. By eliminating the chances of entry level students from obtaining H-1B visas, they will pursue educational opportunities in other countries, which in turn will adversely impact American universities. As AILA’s comment to the H-1B lottery rule points out, international students comprise over 5% of the total number of students enrolled in higher education in the U.S., and contribute billions of dollars to the American economy. See “AILA and the Council Submit Comments Opposing USCIS Proposal to Create Wage-Based Selection Process for H-1Bs”, AILA Doc. 20120234 (Dec. 2, 2020). Talented foreign students have long flocked to U.S. universities, so losing this population would not only financially devastate American educational institutions, but also result in the loss of this source of talented entry-level workers. The notion that foreign students after completing a year or two of OPT or STEM OPT will be able to command Level 4 wages and thus compete for H-1B visas under the new rule is a canard.

United States companies, too, depend on H-1B workers. U.S. employers have long recruited highly skilled and highly education H-1B visa holders to fill entry-level STEM positions. With foreign students comprising the vast majority of graduates of some STEM programs in the United States, there are simply not enough qualified U.S. workers to fill all open positions in many fields. See AILA Doc. 20120234, supra. By effectively foreclosing the H-1B visa as an option for entry-level workers who are not yet earning enormous salaries, the H-1B lottery rule will cause untold disruption and economic harm to U.S. employers who rely on H-1B talent. With some H-1B workers filling critical roles in healthcare and research to combat COVID-19, the potential for harm extends beyond the mere economic and could further delay the United States’ recovery from the pandemic. See AILA Doc. 20120234, supra. If talented H-1B workers go elsewhere for employment, the United States would also lose its ability to attract the “best and brightest” who have made contributions of untold significance to the United States. When the Immigration Act of 1990 revised the H-1B visa and set a 65,000 cap, the internet had not taken off. Since then there have been immense technological leaps, while the H-1B cap continues to remain at 65,000 with a paltry 20,000 added for those with master’s degrees in 2004. Still, it is H-1B visa holders who have contributed to advances in technology and who have ultimately become CEOs of companies like Google and Microsoft. The new H-1B lottery rule will kill the ability of attracting talented foreign nationals on H-1B visas who will ultimately greatly contribute to the US.

Finally, the fact that the H-1B visa is used by IT consulting companies should not be a justification to promulgate the new H-1B lottery rule. The use of IT consulting companies is widespread in America (and even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (AVWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. Even the Durbin-Grassley letter falsely accuses outsourcing companies for gaming the H-1B lottery system without taking into account the limited supply of H-1B visa numbers and the increased demand for skilled workers each year. However, it is this very business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” or “outsourcing company” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.

By continuing to limit and stifle the H-1B program, either through a new H-1B lottery rule or by perpetuating Proclamation 10052, U.S. employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at an IT consulting company, as they too wish to abide by the law and to pursue their dreams in America.  The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly.  H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it by making it harder to win the H-1B lottery.

The comment period closes on THIS WEDNESDAY March 10 at 11:59 pm ET. We would highly recommend that everyone submit their own comment supporting the delay of the rule and the need for further review of the rule, underscoring why a delay is necessary because implementation cannot be rushed through right before cap season, why the rule is unlawful, and why the economic data does not support the rule as written.  You can submit your own comment here:

https://www.federalregister.gov/documents/2021/02/08/2021-02665/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions#open-comment

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Cora-Ann Pestaina

H-1B Registration Update

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Since my last blog on  the upcoming H-1B registration, USCIS has hosted a few webinars where stakeholders – prospective H-1B petitioners and attorneys/representatives – were able to familiarize themselves with the new process. USCIS has since posted copies of the PowerPoint from these webinars in their Electronic Reading Room.

Prospective H-1B petitioners were, as of February 24, 2020, able to create H-1B “registrant” accounts through the MyUSCIS portal at https://my.uscis.gov/.  They need to select “I am an H-1B registrant” when creating the account. Attorneys/representatives are able to use the same type of representative account that was already available on the same site and may use an existing account. This account should have been created by selecting “I am a Legal Representative.”

USCIS will open an initial registration period from noon ET March 1, 2020, through noon ET March 20, 2020, for the FY 2021 H-1B numerical allocations. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 at noon ET to enter beneficiary information, submit registrations, and pay the $10 non-refundable registration fee for each beneficiary. This fee will be collected via the Pay.gov portal and can be made from a bank checking or savings account or a credit or debit card. It will not be possible to pay the registration fee using money orders, certified checks or cash.

The registration form will only request basic information about the prospective H-1B petitioner and beneficiary. Based on the USCIS PowerPoint presentations during their recent webinars, it appears that no information regarding the offered position will be required for the registration process, not even the job title of the offered position. The prospective H-1B petitioner will only need to provide the following:

  • Company’s legal name
  • Company’s Doing Business As (dba) name(s) if applicable
  • Company’s employer identification number (EIN)
  • Company’s primary U.S. office address
  • The legal name, title, and contact information (daytime phone number and email address) of the company’s authorized signatory
  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Beneficiary’s date of birth
  • Whether the prospective H-1B petitioner is requesting consideration under the Master’s cap because the beneficiary has already earned or will earn a Master’s degree from a U.S. institution of higher education prior to the filing of the H-1B petition
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number

During the registration period, representatives and registrants will be able to review and edit the registrations of beneficiaries as many times as needed before the registration is submitted. Once the registration has been submitted, each beneficiary will be assigned a 19-digit confirmation number. If necessary, a registration containing an error may be deleted and resubmitted.

The authorized signatory of the prospective H-1B petitioner must be able to read and understand English. Before submitting the registration form, the company’s authorized signatory will be required to certify, under penalty of perjury, that they have reviewed the registration and that all of the information contained in the registration is complete, true and correct and that the company intends to file an H-1B on behalf of the beneficiary named in the registration (if the beneficiary is selected). This is an important attestation since DHS has indicated in the preamble to its January 31, 2010 regulation that it will investigate cases that demonstrate a pattern and practice of potential abuse of the registration system on a case by case basis, including any mitigating facts or circumstances. Registrants that have been found to engage in a pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties pursuant to 18 U.S.C. 1001(a)(3) for making false statements and misrepresentations to the government.  The authorized signatory will also be required to provide their electronic signature confirming they have read and agree to the above statement by typing their full legal name into a box provided and they must also confirm that they can read and understand English and that they have read and understand every question and instruction on the registration.

Selections will take place after the initial registration period closes, so there is no requirement to register on March 1. If USCIS receives enough registrations by March 20, the agency will randomly select registrations and send selection notifications via users’ USCIS online accounts. USCIS said it intends to notify account holders by March 31, 2020. An H-1B cap-subject petition may only be filed by an H-1B petitioner whose registration for that beneficiary was selected in the H-1B registration process. The petitioner must include a copy of the selection notice with the H-1B filing. The filing period for submitting H-1B petitions begins on April 1, 2020, and will end no earlier than June 30, 2020. USCIS will not accept late filings.

As indicated in a previous blog on H-1B registration, this author believes that it makes the most sense to conduct a complete evaluation of the potential H-1B petition prior to submitting the registration. There are specific strategic decisions that may need to be made such as determining whether or not to file the Labor Condition Application (LCA) for the H-1B cap petition prior to receiving notification of selection from USCIS. Having a certified LCA would allow the H-1B petitioner to more quickly file the H-1B cap subject petition, a timeline that could be very important if the beneficiary is the holder of an F-1 visa with authorized Optional Practical Training (OPT) set to expire in early April 2020. H-1B cap-gap benefits only attach upon the timely filing of the H-1B cap petition and not upon the submission of the H-1B registration. It would make sense for a potential H-1B petitioner to have the LCA ready so as to be able to file the H-1B cap petition prior to the expiration of the beneficiary’s OPT which filing would extend the beneficiary’s duration of status and employment authorization until September 30, 2020 unless the H-1B petition is ultimately rejected, denied, revoked or withdrawn prior to this date.

During its webinars, USCIS had no prepared response regarding a plan of action for a possible system crash and would only indicate that they would inform stakeholders of what to do if there is a crash. Also of some concern is the fact that USCIS indicated it will not set up a separate phone line for the H-1B registration and that registrants and representatives experiencing technical issues should call the USCIS Contact Center at 1-800-375-5283 for assistance. Based only on experience calling this number for other filing issues, one can only wonder what type of assistance would actually be available through this channel. At this point, March 1, 2020 is just around the corner and all we can do now is wait and hope that the process, once underway, will work as intended.

 

 

 

 

Cora-Ann Pestaina

Filing under the FY 2021 H-1B Cap; How will H-1B Registration Work?

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It’s the year 2020! We celebrate the start of a new decade and are hopeful for good things to come. Will the upcoming H-1B cap season be one of those good things? All we know for sure is that it will be different. Preparing for the cap season can be stressful but we recognize the stressors and, through trial and error, we have developed various coping strategies and mechanisms. But this year, we are not sure what to expect.

As background, the H-1B program allows U.S. companies to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution of higher education. Each year, USCIS monitors the number of petitions received during the designated filing period and notifies the public when the H-1B numerical allocations have been met.

It was over a year ago, in December 2018, that USCIS first issued a Notice of Proposed Rulemaking announcing a rule that would revolutionize the H-1B cap process. The rule was made final on January 31, 2019 and amended the regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption and setting forth an H-1B registration process.  Ever since then, business immigration practitioners have been anticipating (or dreading?) the change. USCIS was unable to implement the registration process during the FY 2020 H-1B cap season but they previously announced that the process would definitely be implemented for the FY 2021 H-1B cap season and on January 9, 2020, USCIS published “Registration Requirement for Petitioners Seeking To File H–1B Petitions on Behalf of Cap-Subject Aliens” announcing that the agency had completed all requisite user testing and is implementing the registration process in advance of the H–1B cap season for FY 2021. Based all USCIS has released thus far, here is what we know about the registration process:

  • Employers seeking to file cap-subject H-1B petitions, or their authorized representatives, must complete a registration process that requires basic information about the H-1B employer and each requested H-1B worker. USCIS will open an initial registration period from March 1 through March 20, 2020.
  • There will be a non-refundable registration fee of $10 per for each H-1B registration submitted by petitioning employers.
  • If a specific employer submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that employer relating to that beneficiary for that fiscal year will be considered invalid.
  • There is still no prohibition on a prospective H-1B beneficiary considering job opportunities with multiple employers which may seek to extend a job offer.
  • USCIS will provide step-by-step instructions on its website regarding how to register and employers and authorized representatives will be able to start setting up their registration accounts in advance of the registration period opening.
  • USCIS will post the date that employers and authorized representatives may start setting up accounts on its website.
  • Employers will be able to edit a registration up until the registration is submitted. An employer may delete a registration and resubmit it prior to the close of the registration period.
  • If a sufficient number of registrations are received, USCIS will use a computer-generated random registration selection process (lottery) to select enough registrations to meet the congressionally-mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2021.
  • The lottery will be conducted no later than March 31, 2020.
  • Employers with selected registrations will be eligible to file a cap-subject petition only for the beneficiary named in the registration. An employer may not substitute the beneficiary named in the original registration or transfer the registration to another employer.
  • USCIS will send notices electronically to all registrants with selected registrations. The notifications will be added to registration accounts. The account holder who submitted the selected registration will receive notification via email or text message stating that an action has been added to their account, and they will have to log in to see the full notice.
  • USCIS intends to notify registrants with selected registrations from the initial registration period no later than March 31, 2020.
  • After such selection, employers will be notified by USCIS of the exact amount of time allowed for filing the H-1B petition, which will in all cases be at least 90 days, but may be longer at the discretion of USCIS. Employers will have the ability to file their petitions as soon as eligible (i.e. by April 1) to allow the beneficiary to obtain cap-gap, if required.
  • USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

According to the “H-1B Registration Workflow with Payment” that USCIS released in association with the proposed registration fee requirement, it appears that USCIS will require payment of the $10 registration fee through the Pay.gov portal. Employers may submit one combined registration fee payment for multiple prospective H-1B workers at the same time and the registration fee payment can be paid with either a debit or credit card, or with a withdrawal from a checking or savings account. It appears that USCIS will only require information such as employer and beneficiary names, addresses, employer identification number, and beneficiary date of birth and passport information.  USCIS has stated that they will not evaluate the “quality” of the registration other than to eliminate duplicate submissions. USCIS recognizes that some employers may be more willing to submit a registration than they are willing to submit a complete H-1B cap-petition with filing fees under the old process. However, USCIS will not have any means to determine whether a registration is meritorious until after it is selected and a petition resulting from such registration is properly filed. Because some registrations will not lead to approved H-1B cap-petitions, USCIS plans to hold unselected registrations in reserve and will conduct additional selections if necessary.

There are still many details yet to be divulged about the registration process but USCIS has promised to conduct outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. In the meantime, this author believes that it makes the most sense to conduct a complete evaluation of any potential H-1B petition even prior to submitting the registration. For example, there ought to be preliminary discussions on education credentials, education evaluations, occupational classifications, wage levels, job descriptions, proving specialty occupation, etc. all before submitting a registration. It would be a terrible thing for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue!

While one should anticipate that the new registration system will be up and running, there is still an outside chance that the system might not be ready, or may crash, and employers may at the last minute be asked to file full H-1B petitions in the first five business days of April 2020. Filers must be prepared for all eventualities, and this further underscores the need to ensure that the prospective employees for whom employers will file  H-1B petitions must be properly screened for H-1B eligibility and that all available information and documentation is available to file meritorious cases.

 

 

Cyrus Mehta

Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders

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On Friday, January 11, 2019, many were intrigued by President Trump’s tweet assuring H-1B visas that they should expect a potential path to citizenship. This is what he tweeted:

“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”

There is no direct path to citizenship for H-1B visa holders. They first have to obtain permanent residence, and must then wait for at least 5 years, in most cases, before they become eligible for naturalization.

Trump’s appointee, USCIS Director Cissna, has made life extremely difficult for H-1B visa holders, and thus this tweet was seen like rubbing salt on an open wound. In recent times, even routine requests for extensions of H-1B status for occupations, which should have traditionally been recognized for H-1B classification, have been denied. These arbitrary denials by no means bring simplicity and certainty in the life of an H-1B visa holder, leave alone providing a path to citizenship. To add further insult to injury, the Trump administration is proposing a rule that would rescind the grant of work authorization to H-4 spouses.

Indeed, the goal of the Trump administration, inspired by restrictionists like Steve Miller, is to restrict legal immigration to the United States. This is to appeal to Trump’s base that feel threatened by immigrants of all stripes, whether they are legal, undocumented or refugee.

Some thought that Trump was referring to a proposed rule that would allow employers to preregister for the H-1B lottery, and would be skewed in favor of those with advanced degrees, but this rule too does nothing for existing H-1B visa holders and also does nothing to put them on the path to citizenship.

But if Trump really wants, he can make his tweet become reality without the need to even go through Congress. It has become de riguer for presidential administrations to bring about seismic policy shifts in immigration through executive actions such as President Obama’s DACA or Trump’s travel ban. Even if frowned upon, bypassing Congress to provide benefits to foreign nationals like Obama did is far more preferable than Trump’s travel ban that potentially prevents mothers from banned countries to see their dying child in the United States.

Trump could immediately order Director Cissna to adjudicate H-1B visas in the way that Congress intended, with the goal of approving rather than denying the visa, bringing about much needed simplicity and certainty to both employers and H-1B visa holders. This used to be the case, where the supporting letter for an H-1B petition seldom exceeded a page or two. Presently, employers must brief an H-1B visa petition as if they are filing a brief in federal court. This is quite unnecessary for a routine work visa application.

If H-1B processing resumes in a fair and rational manner, most nationals not born in India and China should be able to obtain permanent residency relatively quickly upon being sponsored by their employers through the labor certification process. Unfortunately, the situation is different for people born in India and China. Due to the per country limits in the employment preferences, they have to wait for several decades even after the employer’s labor certification has been approved. One study predicts that the wait time could be 151 years for Indian born beneficiaries in the employment based second preference.

The outrageous waiting times are due to the excess demand and limited supply of visas, further compounded by the per country cap, set by Congress each year. On first brush, only Congress can change this and not Trump. As Congress is divided, such changes for H-1B visa holders are unlikely for now. There have been proposals in Congress to eliminate the per country caps, which have yet to pass.  However, if he wanted to and had the guts, Trump could change the way we count dependents that would dramatically decrease, and ultimately eliminate the backlogs, thus providing a pathway for citizenship to H-1B visa holders.

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

“A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

If Trump wanted to give meaning to his tweet so as to truly assure H-1B visa holders, even if he may not have known what he was saying,  he does have room under INA 203(d) to order the State Department and USCIS to count both the principal beneficiary and the family members as one. This will greatly reduce the backlogs and put H-1B visa holders, born in India and China, on a path to permanent residency and citizenship.

In Wang v. Pompeo a group of EB-5 investor arguments made the same argument that the State Department was counting visa numbers incorrectly. Their request for preliminary injunction was recently denied, although the case has to yet be decided on the merits. Still, this is a setback as the judge did not accept the plaintiff’s argument that the administration was counting visas incorrectly under INA 203(d). Even if plaintiffs were denied the preliminary injunction, the Trump administration could cease opposing the plaintiffs in this litigation and start counting the principal and derivative beneficiaries as one unit. There is sufficient ambiguity in INA 203(d) for the administration to count in this new way, and a government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Admittedly, hoping that Trump would put H-1B visa holders on a pathway to citizenship is really a pipe dream.  So long as restricitonists like Stephen Miller continue to make the United States hostile to immigrants, there is no chance that Trump’s tweet would ever become reality. If he really wanted to carry out his proposal, it might anger his base. He may have to also fire Miller.  But if Trump ever wants to follow through on his tweet, this blog shows him a way to do so.

 

 

 

Cyrus Mehta

Filing Under The FY 2018 H-1B Cap; New Developments In H-1B Cap Exemption

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U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017. All cap-subject H-1B petitions filed before April 3, 2017, for the FY 2018 cap will be rejected.

Congress set a cap of 65,000 H-1B visas per fiscal year. An advanced-degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher. The agency said it will monitor the number of petitions received and notify the public when the H-1B cap has been met.

If the USCIS receives more H-1B petitions than allocated under the two H-1B caps, then it will conduct a lottery of all H-1B petitions received in the first five days from April 3. Like last year, it is anticipated that many more H-1B petitions will be rejected rather than accepted. There will again be many disappointed applicants.

To compound the problem, USCIS also recently announced a temporary suspension of premium processing for all H-1B petitions starting April 3 for up to six months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker that requests the H-1B nonimmigrant classification. While premium processing is suspended, any I-907 filed with an H-1B petition will be rejected, USCIS said. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, both forms will be rejected.

USCIS reminded H-1B petitioners to follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. The I-129 filing fee has increased to $460, and petitioners no longer have 14 days to correct a dishonored payment. If any fee payments are not honored by the bank or financial institution, USCIS will reject the entire H-1B petition without the option for the petitioner to correct it.

The USCIS announcement about the April 3 start date for FY 2018 H-1B petitions is at https://www.uscis.gov/news/news-releases/uscis-will-accept-h-1b-petitions-fiscal-year-2018-beginning-april-3. The announcement about the suspension of premium processing for H-1B petitions is at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions. Detailed information on how to complete and submit an FY 2018 H-1B petition is at https://www.uscis.gov/sites/default/files/files/form/m-735.pdf. For more information on the H-1B nonimmigrant visa program and current I-129 processing times, see https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season

H-1B Cap Exemption Options

Many H-1B employers are not subject to the H-1B cap and are considered cap exempt. They include institutions of higher education and non-profits affiliated or related to institutions of higher education. See 214(g)(5)(A) of the Immigration and Nationality Act (INA). Employment at a university that qualifies as an institution of higher education, as defined under section 101(a) of the Higher Education Act of 1965, clearly exempts an H-1B beneficiary from the H-1B cap. What was less clear was the definition of a nonprofit entity related or affiliated to an institution of higher education. The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers (High Skilled Worker Rule) , effective January 17, 2017, has broadened the definition of an affiliated or related nonprofit entity if it satisfies the following conditions:

  1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
  2. The nonprofit entity is operated by an institution of higher education;
  3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
  4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

See 8 CFR 214.2(h)(8)(ii)(F)(2).

The High Skilled Worker Rule added the fourth prong, 8 CFR 214.2(h)(8)(ii)(F)(2)(iv), which  recognizes that affiliation may be demonstrated when the nonprofit enters into an agreement with the institution of higher education that establishes an active working relationship, and that a fundamental activity of the nonprofit contributes to the research or mission of the institution of higher education. This broadening of the affiliated relationship opens up the possibility of more H-1B cap exempt petitions for those who have not been able to make it under the H-1B FY 2018 cap and can be employed by nonprofit affiliated entities. Prior to the addition of the fourth prong, it was difficult to show affiliation unless the nonprofit entity was part of the institution of higher education, as defined under 8 CFR 214.2(h)(8)(ii)(F)(2)(i)-(iii).  This is no longer the case if there is a formal written affiliation with an institution of higher education even if the nonprofit is not owned by it or part of it. For example, if the nonprofit enters into an agreement with a university to house student interns, and these interns focus on activities at the nonprofit that contribute to the mission of the university, it will be possible to demonstrate affiliation. Similarly, if the nonprofit enters into agreements that conduct research for the university, such an arrangement could also qualify for showing affiliation and thus H-1B cap exemption.

INA 214(g)(5)(B) also provides for cap-exemption if the H-1B is employed or receives an offer of employment at a nonprofit research organization or governmental research organization. The High Skilled Worker Rule defines a governmental research organization as “a federal, state or local entity whose primary mission is the performance or promotion of basic research and/or applied research.” See 8 CFR 214.2(h)(19)(iii)(C).

Under INA 214(g)(6), it is further permissible for an H-1B beneficiary to be employed by a cap-exempt employer such as a university and then be able to obtain an H-1B, without being counted under the annual H-1B cap, through an employer who would otherwise be subject to the cap. The High Skilled Worker Rule affirms such concurrent employment between a cap-exempt and cap-subject H1B employer, but adds that  there must be a demonstration that the “beneficiary’s employment with the cap-exempt employer is expected to continue after the new cap-subject petition is approved, and the beneficiary can reasonably and concurrently perform the work described in each employer’s respective positions.” See 8 CFR 214.2(h)(8)(ii)(F)(6). The rule further cautions that if the cap-exemption employment is terminated or ends before the end of the validity of the petition that was approved under concurrent employment, the H-1B worker becomes subject to the numerical limitations of the H-1B, and that the USCIS may revoke the cap-subject H-1B petition. See 8 CFR 214.2(h)(8)(ii)(F)(6)(ii). Prior to the high Skilled Worker Rule, it may have been possible to argue that the H-1B worker did not become immediately subject to the numerical limitations even if concurrent cap exempt employment terminated and that he or she would only become subject to the cap upon the filing of the next H-1B petition. This is no longer the case.

Pursuant to INA 214(g)(5), an H-1B worker who is sponsored through a cap subject entity is not counted under the H-1B cap lottery if he or she is employed “at” a cap-exempt institution of higher education or is employed “at” a non-profit affiliated to an institution of higher education. The High Skilled Worker Rule affirms what is commonly referred to the “at” doctrine as the H-1B worker is working at a cap-exempt employer although he or she is the beneficiary of an H-1B petition filed by a cap-subject employer. While a plain reading of INA 214(g)(5) merely requires demonstration of employment at a cap subject employer, the High Skilled Worker Rule imposed additional requirements that are  not supported by the statutory provision. It is now required to demonstrate that the “H-1B beneficiary will spend the majority of his or work time performing job duties at a qualifying institution, organization or entity and those job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity, namely, either higher education, nonprofit research or government research. The burden is on the H-1B petitioner to establish that there is a nexus between the duties to be performed by the H-1B beneficiary and the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity.” See 8 CFR 214.2(h)(8)(ii)(F)(4). This works best where the petitioner is closely tied to a cap exempt entity, such as a startup using the research laboratory of a university who have both received joint funding, and where the H-1B beneficiary performs research at the laboratory even though sponsored for the H-1B through the startup.

Any H-1B beneficiary who has previously been counted, within the 6 years prior to the approval of a petition shall not be counted towards that limitation again, unless the individual would be eligible for a full 6 years by spending one year outside the United States. See INA 214(g)(7). This is the case even if the beneficiary never entered the United States under the previously approved H-1B petition, unless the employer notified the USCIS and the petition got revoked. The High Skilled Worker Rule adopts a 2006 USCIS Memo that gave the beneficiary a choice of either recapturing the remaining time left on the H-1B or seeking a new period of six years if the beneficiary was outside the United States for more than one year. 8 CFR 214.2(h)(13)(iii)(C)(2) like the 2016 USCIS Memo now allows recapture of remaining time left in H-1B even if the previous H-1B petition was approved more than 6 years ago, and gives the beneficiary who has been physically outside the United States for more than 1 year a choice of either recapturing the remainder of H-1B time or seeking a new period of six years.

Although H-1B cap exemption possibilities clearly exist, and have somewhat broadened under the High Skilled Worker Rule, not everyone will qualify for cap-exemption unless they are specifically offered employment through cap exempt employers or work at cap exempt entities. Most people will not get selected under H-1B lottery. For FY 2017, the USCIS received over 236,000 H-1B petitions, all vying for one of the 85,000 visas available. This means that some 151,000 or more people – highly qualified individuals with dreams and career aspirations – will likely be denied the ability to work in the US. This is not for lack of skill, this is not for lack of good moral character, but for an arbitrary cap system that limits upward mobility and stifles US economic growth and innovation in many fields

Cyrus Mehta

Will the Disruption of the H-1B Lottery Force Change for the Better?

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A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely prospect of being rejected by an opaque randomized lottery.

The lawsuit asserts that the H-1B lottery contravenes the law, and points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” This suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. The parallel provision, INA § 203(e)(1), for immigrant visas reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B nonimmigrant visa petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

The government in Tenrec, Inc. v. USCIS filed a motion to dismiss for lack of subject matter jurisdiction. In its motion, the government argued that the individual plaintiffs did not have standing because only employers have standing to challenge the H-1B program. The employers too, according to the government, did not show sufficient injury and thus did not have standing.  In a September 22, 2016 decision, Judge Michael Simon rejected the government’s lack of standing claims on both counts. Judge Simon referenced other recent federal court decisions that have ruled that foreign workers who are beneficiaries of immigrant visa petitions have been allowed to challenge their denials, and be given notice of them. This trend has been discussed in my recent blog, Who Should Get Notice When the I-140 Petition Is Revoked? It’s The Worker, Stupid! What is interesting in Judge Simon’s decision is the notion that standing can also extend to nonimmigrant workers. As the recipient of an H-1B visa can become a permanent resident through subsequently filed applications following the grant of H-1B status, there is no distinction between the beneficiary of a nonimmigrant visa petition with an immigrant visa petition. Even if the individual H-1B visa plaintiffs cannot become permanent residents, Judge Simon noted that they are still “more than just a mere onlooker” because their status would be in jeopardy and would lose an opportunity to live and work in the United States, as well as enjoy life here. Judge Simon also held that the employers had standing notwithstanding that the H-1B lottery already occurred since it was likely that the employer could lose in next year’s lottery. This holding in itself is invaluable for providing standing to nonimmigrant visa holders in future challenges even if the plaintiffs are not victorious here.

Even if the plaintiffs succeeding in knocking out the H-1B lottery, they will not be able to readily access the H-1B program. The annual H-1B cap will still be limited to 65,000 per year for applicants with bachelor’s degree, and an additional 20,000 for those with master’s degrees. It will be somewhat similar to the priority date system for immigrant visas that face years of backlogs, and the EB-2 and EB-3 India backlogs is currently several decades long. Although the underlying labor condition application of an H-1B petition is valid for only three years, under a redesigned filing system devoid of the lottery, an LCA could potentially be submitted and activated once the priority date for that H-1B petition becomes current.

While the H-1B lottery benefits employers who file many petitions each year (as they can then at least hope to win some in the lottery), there is already a wait list for most, especially smaller employers who file for one employee.  If the employer loses two or three lotteries before getting a number for that prospective employee, this in any event becomes a de facto waiting list.   The fact that some lucky ones get in the first time does not mean that most will not be subject to a wait list. While a wait list system for all will be fairer than a randomized lottery for a lucky few, it will create pressure for the administration to tweak the system or for Congress to create more access to H-1B visas. Regarding tweaking the system, I have previously argued that beneficiaries of approved H-1B petitions on the wait list should on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

While U visa recipients already in the United States on a wait list can seek deferred action, the USCIS has also recently agreed to grant parole to U visa petitioners and family members based overseas when the 10,000 annual limitation has been reached.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on certain narrow criteria.    Critics of the H-1B program, and there are many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued by anti-H-1B interest groups, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as students who have received Optional Practical Training, be granted deferred action as wait listed H-1B beneficiaries. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf. One could also throw in a requirement that the employer register under E-Verify in order to qualify, and this would expand E-Verify to many more employers, which is one of the government’s  goals as part of broader immigration reform.

Of course, people have gotten comfortable with the status quo, but the H-1B lottery is problematic and thus not worthy of preservation. By turning the lottery on its head, it is hoped that there will be real change for the better. Ideally, Congress should bring about change by creating more H-1B visa numbers, although given that the H-1B visa program has already been poisoned due to the misconception that H-1B workers take away US jobs, other restrictions in exchange for more H-1B numbers will become inevitable, such as forcing employers to recruit before filing for an H-1B visa or by creating more restrictions on dependent H-1B employers. Still, disruption is the order of the day, and if we have witnessed seismic disruption in the taxi industry through Uber or the hotel industry through Airbnb, why not also disrupt the H-1B lottery through a lawsuit in hope for positive change? As Victor Hugo famously said – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be contributing to the United States today through their careers and tax dollars? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule?  Moreover, the new proposed parole entrepreneur parole rule is also worthy of emulation in place of  a disrupted H-1B lottery program. If deserving entrepreneurs can receive parole, so can deserving H-1B beneficiaries who are waiting in a queue that may be more fair than the lottery.  Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press this administration and the next with good ideas. The lawsuit to end the H-1B lottery is one such good idea. It should be embraced rather than feared in the hope that it will first dismantle and then resurrect a broken H-1B visa program.

Cyrus Mehta

Can The H-1B Visa Be Saved Through Executive Action?

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The annual H-1B VISA cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely project of being rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, makes the process even more unfair. Under the lottery, unsuccessful H-1B petitions may be every year with no guarantee of being selected. In fact, notwithstanding recent criticisms, the H-1B visa program has a positive impact on jobs, wages and the economy. Unfortunately, this time too, it is predicted that there will be far more H-1B visa petitions received when compared to the 65,000 H-1B visa cap plus the additional 20,000 H-1B cap for those who have graduated with advanced degrees from US universities. To have only less than a 30% chance to secure an H-1B visa number under the 65,000 cap renders the program totally unviable for employers and H-1B visa applicants.

I was thus heartened to read a blog by esteemed colleague Brent Renison for suggesting that the H-1B lottery may be illegal. He points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” According to Renison, this suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. Renison also points to a parallel provision, INA § 203(e)(1),  which reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

Renison is contemplating filing a class action to challenge the H-1B visa lottery under 8 CFR 214.2(h)(8). I commend him for this initiative, and now take the liberty to propose an even more audacious idea, building upon his brilliant idea. If he is successful in getting USCIS to cease the H-1B lottery process, and accepting all H-1B petitions and placing them in a queue, then the USCIS should approve such petitions prior to placing them in a queue, but only allowing either the grant of an H-1B visa or a change of status to H-1B when a visa number becomes available. However, beneficiaries of approved H-1B petitions on the wait list should also on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on the basis that the employer would comply with the terms and conditions of the H-1B petition and the attestations made in the underlying Labor Condition application.   Critics of the H-1B petition, and there are obviously many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as STEM (Science, Technology, Engineering and Math) students who have received Optional Practical Training, and are making significant contributions, be granted deferred action as wait listed H-1B beneficiaries. Such deferred action should only be granted if they are well within the three year term of the approved H-1B petition. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf.

While this proposal will likely not get a standing ovation on first brush, and the best solution is for Congress to either expand the H-1B cap or get rid of it altogether,  it is important to take comfort in Victor Hugo’s famous words – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be flaming successes today? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule? Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press the administration with good ideas, and to build upon brilliant ideas proposed by others. Good ideas never disappear, and have the uncanny knack of resurfacing again and again, until they come into fruition to benefit deserving immigrants who contribute to America.

Cyrus Mehta

AMERICA CANNOT BE OPEN FOR BUSINESS THROUGH AN H-1B VISA LOTTERY

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By Gary Endelman and Cyrus D. Mehta

In America, the best day of the week has always been tomorrow except, it seems, when it comes to immigration. On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April. It is anticipated that USCIS will also use the lottery again for the FY 2016. The very existence of the H-1B lottery speaks most eloquently to the economic illiteracy of the current H-1B cap. Perhaps more than any other visa, the H-1B is viewed by those in charge as a problem to be contained, not an asset to be maximized. In a political system that has an almost mystical faith in the market, the inflexibility that characterizes the H-1B cap is eloquent testimony to an absence of imagination and a refusal to let the market set the level of H-1B demand.

A few days back, President Obama addressed the SelectUSA Investment Summit, and these were his words:

So the bottom line is this:  America is proudly open for business, and we want to make it as simple and as attractive for you to set up shop here as is possible.  That is what this summit is all about.  I hope you take full advantage of the opportunities that are here.

These words sound hollow if employers who desire to hire foreign talented workers on the H-1B visas have to depend on a lottery. If an H-1B visa petition is selected, the foreign worker can only start employment on October 1, 2015. If the H-1B visa petition is not selected, the employer has to try again in April 2016, with the hopes that the employee will come on board on October 1, 2016. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers. The notion of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style lottery into the process, just rubs salt into an oozing old wound. The lack of flexibility that robs our H-1B policies of any notion of flexibility reflects a bedrock belief, as wrong as it can possibly be, that immigration is only for the benefit of the immigrants. It is about them, we seem to be saying, not about us. Our self-interest is not at stake. Not only is this economically incoherent but it ignores the moral integrity of allowing an employment-based immigration system to function in harmony with the economy that it is supposed to serve. It will not only fail to prepare American workers for the future; it will fail utterly to protect them against the present. That is the most telling indictment of our current H-1B approach, namely it does nothing to benefit those who are presumably its intended beneficiaries. So long as this Maginot line of defense persists, those in charge of H-1B policy will have no incentive to look for anything better.

This absurd situation can be remedied quite quickly. The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000. In essence, for the first time, the H-1B allotment will be infused with the lubricant of capitalism, rising and falling in concert with the needs of the American economy.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

  •  Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
  • Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
  • Authorizes employment for dependent spouses of H-1B visa holders.
  • Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
  • Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
  • Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
  • Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
  • Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

Unfortunately, the prospects of this bill’s passage are not too strong. Senator Grassley chairs the Judiciary Committee in the Senate and he will likely not consider the bill. Nor will Senator Jeff Sessions who chairs the Immigration Subcommittee. Both of them are arch foes of positive skilled immigration reform. They also do not see that passing the I Squared Act will indeed benefit rather than harm the United States. They also have allies on the left such as the AFL-CIO and think tanks like the Economic Policy Institute who oppose the H-1B visa. The reason that they do not know how to use immigration to create economic opportunity is that they do not think of immigration in this fashion. They have a static view of the economy where the focus is on not letting foreigners steal the jobs that do exist rather than examine how employers or entrepreneurs can use immigration to create new economic opportunity. Indeed, the odd marriage of the left and the right in opposition to a rational H-1B program reflects a shared belief that immigration is bad for American workers, that no new wealth can be created, that opportunity is gone, that we have to protect what now exists rather than seek to invent that which has yet to be imagined. The H-1B illustrates the Luddite pessimism of its opponents who believe that America’s best days are behind it. At a time when change is the only constant, those who want to place a straightjacket around the H-1B vainly seek to hold back the future. Operating from these misplaced assumptions, it is not at all surprising that the United States ranks near the bottom among major economies in terms of policies to allow hiring highly skilled immigrant workers, according to a study.

IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. However, it is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the US through their skilled personnel.

While Senator Grassley and his cheerleaders may gloat, decent people should feel bad for all the rejected foreign national prospective employees who would have otherwise qualified to work in a specialty occupation, as defined under the H-1B visa law. More people will get rejected than selected, and their hopes and dreams will be dashed.  Many who are in the United States after graduating from American universities may have to leave. Others won’t be able to set foot into the United States to take up their prized job offers. Imagine if all of these rejected folks could actually come and work in the United States. Their employers would benefit and become more globally competitive – and could have less reason to outsource work to other countries. They would have also been productive workers, and spent money in the US economy, including buying houses and paying taxes. The H-1B cap will once again rob the economy of this wonderful cascading effect.

We have said this before and it is worth repeating again. What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else.

The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies. History teaches us that those who shrink from new challenges rarely achieve greatness. In the 15th century, vast Chinese armadas with ships far larger than Columbus’ fleet crossed the Chinese sea venturing far west to Ceylon, Arabia and East Africa. Seven times from 1405 to 1433, Chinese traders sailed to the Persian Gulf and beyond, bringing vast new trading areas under Chinese imperial control. Yet, precisely at a time when China was poised to create this global commercial empire, they drew back. Less than a century later, all overseas trade was banned and it became a capital crime to sail from China in a multi-masted ship. This was one of history’s great turning points. The high ground in the information age global economy of the 21st century will belong to those who dare to dream. Maybe a rational H-1B policy would be a good place to start.

(Guest Author Gary Endelman is the Senior Counsel of Foster)