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The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS announces that the cap has been filled and rejects further petitions subject to the cap.

The rule stipulates that if USCIS determines that the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during that time period. If the 20,000 advanced-degree limit is reached during the first five business days, USCIS will randomly select from those petitions before conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random process will be considered along with the other H-1B petitions in the random selection for the 65,000 limit. 
The interim rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned. Under current procedures, which are not changed by this rule, once U.S. Citizenship and Immigration Services (USCIS) receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

As noted above, H-1B availability is likely to be exhausted immediately. Contact your Alliance of Business Immigration Lawyers member for guidance in particular cases.

The interim final rule is available. A USCIS press release announcing the interim rule is available as PDF. A fact sheet with additional details is available. Questions and answers are also available.

In other H-1B news, the March 2008 edition of Business Week noted that two outsourcing companies based in Bangalore, India, top the list of approved H-1B visa petitions in 2007: Infosys Technologies (4,559 visas) and Wipro (2,567 visas). Six of the top 10 H-1B visa recipients are based in India, and Indian outsourcers received nearly 80 percent of the visas approved for the top 10 participants in the H-1B program. Infosys has 88,000 workers worldwide, with 9,000 of those in the U.S., including 7,500 H-1Bs.

Bill Gates testified on March 12, 2008, before the House of Representatives’ Committee on Science and Technology about the “gathering threat to U.S. preeminence in science and technology innovation.” He proposed a four-part plan, including revamping immigration rules for highly skilled workers so that U.S. companies can attract and retain the world’s best scientific talent. As a result of an artificially low H-1B cap and “counterproductive immigration policies,” he said, many U.S. firms, including Microsoft, have been forced to locate staff in countries that welcome skilled foreign workers to do work that otherwise could have been done in the U.S. Mr. Gates said that an increase in the number of H-1B visas likely would increase employment of U.S. nationals as well, citing a study of technology companies in the S&P 500 that found that for every H-1B visa requested, leading U.S. technology companies increased their overall employment by five workers.

Mr. Gates’s testimony before the House committee is available for download as PDF.

A policy brief on H-1B visas and job creation by the National Foundation for American Policy (NFAP), which notes that hiring H-1B visa holders is associated with increases in employment at U.S. technology companies, is available. An NFAP policy brief on job openings and the need for skilled labor in the U.S. economy is at http://www.nfap.com/pdf/080311talentsrc.pdf.

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Some of the key modifications include:

• Extending from 10 to 30 days the time a temporary agricultural worker may remain in the U.S. following the expiration of the H-2A petition;
• Reducing from six months to three months the time an H-2A worker must wait outside the U.S. before becoming eligible to re-obtain H-2A status;
• Allowing H-2A workers who are changing from one H-2A employer to another to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer participates in USCIS’s E-Verify program;
• Requiring an employer attestation regarding the scope of the H-2A employment and the use of recruiters to locate H-2A workers;
• Cracking down on employers and recruiters who impose fees on prospective H-2A workers;
  Requiring an approved temporary labor certification in connection with all H-2A petitions;
• Prohibiting the approval of H-2A petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
• Establishing a land-border exit system pilot program, which ensures that foreign workers admitted through a port of entry participating in the H-2A program must depart through a similar port that also participates in the program. U.S. Customs and Border Protection will publish a Notice in the Federal Register designating which temporary workers must participate in the program, which ports of entry are participating in the program, which biographical and/or biometric information would be required, and the format for submission.

Meanwhile, the Department of Labor issued a proposed rule on temporary labor certifications for H-2A workers. The proposed measures focus on an attestation-based application process after an employer conducts pre-filing recruitment and eliminating “duplicative activities” currently performed by State Workforce Agencies (SWAs). In concert with these changes, the Department proposes to amend the wage and hour regulations to provide for enhanced enforcement, including more rigorous penalties, under the H–2A program.

The Department noted that although increases in productivity have contributed to expanding agricultural productivity with a lower need for labor, a “sudden and dramatic decrease in the supply of workers cannot be entirely attributed to productivity, and poses severe economic consequences for growers, especially those of perishable crops.”

The agricultural industry has many more jobs than available legal workers. Among other things, the Department noted that authorized workers appear to be leaving farm jobs because of age or opportunities for more stable and higher paying employment outside of agriculture, and are being replaced almost exclusively by unauthorized foreign-born workers. In addition, the Department said, enhanced enforcement efforts appear to have contributed to a reduction in the availability of agricultural workers, which has sparked agricultural crises across a number of states over the past year: “Numerous reports of shrinking or nonexistent farm seasonal labor, with attendant crop loss for lack of harvest help, have been prominent in recent months and reflect Department survey data.” As a result, for example, Colorado has initiated the use of inmate labor on farms where migrant labor was previously used. In addition, an increasing number of farmers have been investigating alternatives such as raising crops in Mexico instead to secure needed workers that they cannot legally hire in the U.S. The Department said it expects that efficiencies in program administration resulting from the proposed rule “will significantly encourage increased program participation, resulting in an increased legal farm worker labor supply with the attendant legal rights and protections for workers.”

USCIS and the Department of Labor will accept public comments until March 31. The full text of USCIS’s notice of proposed rulemaking is available as a PDF. The Department of Labor’s proposed rule is available here.

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