Tag Archive for: H-1B Visa Cap

Cyrus Mehta

H-1B Visa Contest: US Master’s Degree v. Foreign Degree

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The Trump Administration has proposed a rule that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master’s or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing “a more meritorious selection of beneficiaries.”

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted toward the number of petitions projected as needed to reach the cap.

Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all registrations or petitions toward the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions toward the advanced degree exemption. This proposed change “would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries,” USCIS said. The proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education, the agency noted.

USCIS said it expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for the agency. The proposed rule would “help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process,” USCIS said. “This would help reduce wait times for cap selection notifications.” The proposed rule also would limit the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration, “which would protect the integrity of this registration system.”

On the one hand, there are compelling policy justifications to skew the allocation of scarce H-1B visas towards employers who hire foreign nationals with advanced degrees from US educational institutions. The H-1B reform Act of 2004 exempted the first 20,000 from the H-1B cap who had a US master’s or higher degree. After the first 20,000 were exempted, the remaining applicants with master’s degrees are considered under the overall 65,000 cap minus the H-1B1 numbers for Singapore and Chile. This counting methodology, deployed since 2004, is a faithful interpretation of INA § 214(g)(5)(C), which exempts an applicant master’s or higher degree from the H-1B cap “until the number of aliens who are exempted from such numerical limitations during such year exceeds 20,000.”

It remains to be seen whether the proposed methodology of counting all petitions first under the 65,000 cap, and then selecting those left out under the regular cap to qualify under the 20,000 master’s degree exception, would still be a faithful interpretation of both INA § 214(g)(5)(C) and the overall H-1B visa program as defined in INA § 101(a)(15)(H)(i)(b) and § 214(i)(1). If there is a lawsuit, a federal court would have to make that determination

Under INA § 214(i)(1), the H-1B visa requires the qualified foreign national to perform services in a specialty occupation, which requires “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Thus, the minimum threshold degree to qualify for H-1B visa classification is a bachelor’s degree and not a master’s degree.

Moreover, INA § 214(i)(1) contemplates one who has a foreign degree to be able to qualify by establishing that it is equivalent to a US bachelor’s degree. See also 8 C.F.R. § 214.2(h)(4)(iii)(C). Even experience can count as equivalent to a bachelor’s degree. See INA § 214(i)(2)(C). The skewing of H-1B visas towards those with master’s degrees from US institutions may in some senses be counter to Congressional intent, which was to permit those with foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign physician with a master’s degree in medicine from a foreign university who intends to provide critical medical services in a shortage area in the United States may have less chances of nabbing an H-1B visa under the new proposal. So would a highly skilled  IT worker with a bachelor’s degree in computer science from a reputed Indian institution such as the Indian Institute of Technology. Both the physician and the IT worker with foreign degrees have the potential of making contributions to the US in the same way, or even greater,  as one who has graduated with an MBA from a US university.

In recent times, H-1B workers from India have in IT fields have been perceived to be taking away the jobs of US workers notwithstanding their acknowledged contributions to US businesses. Whether intentional or unintentional, the proposed rule will adversely impact the ability of IT consulting companies to sponsor such workers from India, even though 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. 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.

The new rule, unfortunately, has begun to create divisions within the H-1B community. Those who have paid tuition fees to US universities to earn master’s degrees feel that they are entitled to get preference in the H-1B lottery. At the same time, those who have earned bachelor’s degrees in the US will not get a preference, although US universities also gain from fees paid by foreign undergraduate students.  Others with degrees from abroad, including their employers who have sought them out for specialized skills that may not be found in the United States, feel equally entitled. Moreover, it is not always the case that one with a master’s degree will be paid a higher wage than others. A skilled professional with a bachelor’s degree and many years of experience could be paid more than an entry level worker with a master’s degree. Also, as noted before, applicants are selected under the H-1B advanced degree exception not because they are entering into a specialty occupation that requires a minimum of a master’s degree, but only because they graduated with an advanced degree from a specified US institution under INA § 214(g)(5)(C). The position may require a bachelor’s degree even though the H-1B worker possesses a higher degree, and will thus get the commensurate wage that would be paid to a comparable US worker with a bachelor’s degree.   In a perfect world, the solution is for Congress to create more H-1B visa numbers that would serve all constituencies, which in turn, would also serve the US national interest.  Unfortunately, the national interest is defined differently by the Trump administration. The proposed rule is being issued in response to the Buy American Hire American (BAHA) executive order instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The executive order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” BAHA has already been deployed to wreak havoc to the legal immigration system by either delaying the processing of visa applications or denying them, and this rule may also cause more harm than good in the long run.

There is some chance that the proposed rule may not take effect by April 1, 2019, which is when H-1B petitions may be filed for FY2020 commencing October 1, 2019. It includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS “may experience technical challenges with the H-1B registration process and/or the new electronic system.” The proposed temporary suspension provision would also allow USCIS to “up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process.” If the rule is finalized as proposed but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS said it would likely suspend the proposed registration requirement for the FY 2020 cap season.

 

Cyrus Mehta

SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM

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By Gary Endelman and Cyrus D. Mehta

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. Soon employers will be scrambling again on April 1, 2015 to file their H-1B petitions in the hope that they will be selected in the cap lottery. H-1B numbers will get exhausted six months before the start of the new fiscal year on October 1, 2015. 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.

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.

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.

Until now, the ever-increasing fees and hyper-regulation imposed by Congress and the USCIS on H-1B employers have been justified by the simple but stubbornly held, if unstated, conviction that the hiring of foreign workers is contrary to the national interest and should be punished. Beyond that, the USCIS and DOL, not to mention the legacy INS, have always and continue to believe that the infliction of such punishment was the best, perhaps the only way, to shield US workers from such “illicit” activity. No government should have to apologize for trying to protect its own citizens. The true objection to what the USCIS and DOL have done is that their efforts, however well intentioned, have done precious little to help, but much to hurt, the very objects of their stated concern.

What is also remarkable about the I-Squared Act is that it raises the H-1B cap without undermining the H-1B visa program the way we know it. Unlike what S. 744 tried to do to muddy the H-1B visa, there are no provisions that would force employers to pay higher than market wages, or subject dependent employers to artificial and onerous recruitment requirements. The bill also incorporates ideas that have been floated in the context of bringing about administrative reform. Most notable is that I Squared exempts dependents from being counted in the employment-based preferences, which is something that we have advocated for several years. It is always preferable if Congress is able to bring about this change than to have the Administration find a justification for not counting family members under the current INA, and possibly even being sued for doing so. The bill also seeks to recapture unused visa numbers, and these have been estimated to be at least 200,000.

The bill would also allow for early adjustment filing by deeming an immigrant visa to be immediately available if the visa has not been used up during the fiscal year. This is precisely what we have also been advocating for facilitating early adjustment filings administratively. So long as there is even one visa that has gone unused, there should be a deeming of visa availability, thus allowing a foreign national to  be able to file an early adjustment of status application before the State Department’s Visa Bulletin announces them current. Of course, if Congress can bring about the innovation through the I Squared Act, so much the better. This redefinition of visa availability would also inject new and badly needed relevancy into the age-freezing formula of the Child Status Protection Act which, despite petition approval, does not operate where there are visa backlogs. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the visa availability is redefined, then the danger of aging out is removed. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. Interestingly enough, the I-Squared Bill will be the one and only definition of visa availability that Congress has ever authored.

The bill will also bring some respite to H-1B workers whose jobs get suddenly terminated. At present, there is no respite and an H-1B worker is in violation of his or her status upon termination. The bill will grant a 60 day grace period if the H-1B is terminated before the I-94 expires during which time a new employer can file a petition to extend or change status. This is the first step. We also urge that Congress passed a startup visa for entrepreneurs who wish to set up innovative businesses in the US. The H-1B visa is ill-suited for startups due to the need for the employer to establish control over the H-1B worker’s employment, which is difficult to demonstrate if the foreign national is the founder and owner of the entity.

The bill will also prohibit USCIS and DOS from denying subsequent petitions, visa or applications involving the same petitioner and beneficiary unless there was a material error relating to the approval of the prior petition, a material change in circumstances has occurred or new material has been discovered which adversely affects the eligibility of the employer or the worker. Although this bill has bipartisan support, it remains to be seen whether it will pass Congress. Republicans will want to introduce an amendment to abolish the Deferred Action for Parents Accountability (DAPA) program and Democrats may want to include provisions to make it more comprehensive such as legalizing undocumented persons. If both parties want to be able to demonstrate and can get something done, it would behoove them to pass this bill so as to avoid another H-1B cap quagmire looming ahead of us. Additionally, this bill will also help to further strengthen the American economy.

Section 102 of the I-Squared Bill would allow both H-4 and L-2 spouses to work, providing them with an “employment authorized endorsement of other appropriate work permit.” Does this mean a need to get an Employment Authorization Document? Who knows?  We welcome this development even though there is nothing in the INA right now that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. While the USCIS has proposed to allow H-4 employment in select instances, the I-Squared version of H-4 employment authorization is a distinct improvement. I-Squared improves the USCIS proposed rule as it would allow H-4s to obtain EADs without preconditions. The proposed USCIS rule imposes preconditions where the principal must either have to have an approved I-140 or be filing for an H-1B extension beyond the 6th year under the American Competitiveness in the 21st Century Act. Both versions unnecessarily limit H-4 employment to spouses rather than extending it to teen age children.

Much as with the notion of a flexible H-1B cap, this reframing of visa availability is not so much an attempt to create a new immigration law as to bring new depth and definition to the existing INA, thus indicating yet again that the value of incremental change is to function as an improvement upon existing legislation. While I-Squared does not overly challenge the tyranny of priority dates, it does so indirectly by updating our understanding of visa availability and exempting  EB-1 extraordinary ability and  outstanding researchers from being subject to the crushing weight of the numerical employment based  caps, as well as advanced degree holders with STEM degrees .  The concept of family unit is advanced by not counting family members against the employment-based immigrant visa caps but it would be even better if family members were similarly exempt as a factor in the family-based quota limits.

While I-Squared does not explicitly link H-1B allotments to domestic economic conditions, it does so on a de facto basis by allowing the H-1B cap to rise or fall in connection with increases or decreases in H-1B sponsorship which themselves are a direct function of business profitability. While I-Squared does not make the H-1B truly portable, it does grant a temporary 60 day basis for the H-1B worker to find a new job without falling out of status. While I-Squared does not explicitly sanction consular reviewability, it makes it unnecessary for E, H, L, O or P visa holders to go to a consulate in the first place in order to renew their existing visas by restoring the pre-9/11 practice of visa revalidation. While I-Squared retains the INA 214(b) presumption of intending residence or immigrant intent, it exempts F-1 students from the obligation to maintain an unabandoned foreign residence abroad. Dual intent is not eliminated but students now come within the protection of its sheltering arms. The concept of the per country cap is partially retained but only on the family based side of the ledger. Let’s take the next step and extend this reductive methodology to FB quotas. The priority date system remains in place but the INA now will define visa availability so long as any visa number allocated to employment-based preference immigrants has not yet been issued for that fiscal year.  Beyond that, US advanced degree STEM holders are no longer counted against the overall EB limits. In sum, I-Squared is a classic example of legislative remediation that retains the frame of what was not working while infusing it with new meaning and greater adaptability to meet and answer the challenges of the 21st century.

This is pre-eminently a time for innovation. Try something, if that does not work, well then, try something else. True and lasting change is what America needs. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The USCIS and DOL care about American workers but do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. For those who think a new way is too complex, do we not have complexity now and towards what end? For those who shrink from the demands of change, or doubt what they can do to chart a new course, let them listen to the wise words of Robert Frost in his immortal poem The Road Not Taken that can, if we have the will and wisdom to hear it, still speak to us today: ” Two roads diverged in a wood, and I – I took the one less traveled by, And that has made all the difference.”

Cyrus Mehta

H1B DITTY

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By: Myriam Jaidi

[An LLMJ creation set loosely to an old “gangsta” tune.  A thank you to Elizabeta Markuci for a lyrical turn]

Here’s a little somethin’ bout the H-1B
Havin’ so much trouble as a legit visa category
Grass-ley would like to say
It’s a crazy visa status, should be thrown away

Since it was established, so much trouble
Cuz of the few employers pullin’ tricks on the double
Breakin a rule or two, that’s what a few of them do
Not caring how it affects the rest of you

With a fake job no pay fake work-site
Messing things up for employers who do everything right

Hope the Gang of 8 is getting with it.
H-1B numbers need to increase by a big bit
A few indictments of alleged fakers here and there
Shouldn’t hurt the legit employers everywhere

Why the IT business model being picked on?
Many companies place people off-site, why not Dibon?
If they are benching they aren’t the best role model at the moment
But ‘til they’re proven guilty, the H-1B shouldn’t foment.

Everywhere you look, people trifling
Blaming H-1Bs for job growth stifling.
Entrepreneurs had hope with EIR and all that,
Now shaking their heads as their petitions go splat.

The H-1B should be a status built to last
Just ask Bill Gates, he’ll tell you: you better move fast
He’s lucky.  He has options. Like Canada, where he can bail to.
What about everyone else, what should they do?

Lobby, lobby, just like Mark Z. do!
It’s not about mentality it’s about economic need and reality
Lobby, lobby

Hopin’ you sophisticated politicians hear what they have to say.

And yes, April Fools!