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H-1B Rush Begins; Reform Bill Introduced in House; Other Developments


April 2, 2007, marks the start of the annual H-1B rush. Last year, the cap was reached by May 26 and all indications are that it could be reached imminently this year. A random selection process may be employed for the overflow if applications received by U.S. Citizenship and Immigration Services (USCIS) exceed the limit on a particular day. The Academy of Business Immigration Lawyers recommends filing H-1B applications immediately.

Also, a USCIS interoffice field memorandum noted that the Department of Labor (DOL) Web site through which labor condition applications (LCAs) are requested has occasionally been unable to print a copy of the certified LCA after completion of the certifying process. The USCIS guidance instructs officers to accept H-1B petitions filed without a copy of the certified LCA for the FY 2008 cap if the filings are accompanied by screen prints from the DOL Web site showing that the LCAs were in fact certified on March 30, 2007 (or any other date on which USCIS can verify with DOL that the DOL LCA Web site malfunctioned). The screen print must display the ETA case number, the petitioner EIN, and the employer name. Before final adjudication of the petitions, USCIS may require copies of the certified LCAs. The memorandum is posted here.

Bipartisan legislation introduced in the House of Representatives on March 22, 2007, would lift the H-1B cap from the current 65,000 to 115,000, with market-based automatic increases up to 180,000. The “Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007” (H.R. 1645) also would eliminate limits on foreign workers with advanced U.S. degrees in science, technology, engineering, or math (STEM). Certain “extraordinary ability” workers in science and business would find it easier to obtain permanent residence under the legislation.

The new legislation also would establish an H-2C visa, valid for three years and renewable for another three. Under the H-2C visa, employers would be required to attempt to hire U.S. workers first and would be barred from hiring new immigrant workers in areas with high unemployment rates for workers with no education beyond high school. The H-2C visa program would have an initial cap of 400,000, adjusted yearly based on market fluctuations, and would include labor rights and protections, such as visa portability and competitive wage protections.

The new bill also would create a new guestworker program under a conditional nonimmigrant visa for eligible undocumented workers and their spouses and children in the U.S., valid for six years. Such workers, if they qualify, would have the opportunity to apply for permanent residence and eventual “earned citizenship,” but would have to wait at the back of the line for green cards and would have to pay a hefty fine. Among other things, to gain earned citizenship, a worker in most cases would need to meet a “legal reentry” requirement, whereby the worker would “reboot” his or her status by leaving the U.S. and returning.

Also, the new legislation calls for an electronic work authorization verification system for employers. The bill incorporates the DREAM Act of 2007 and the AgJOBS Act of 2007.

Although early indications were promising, passage of the House bill remains uncertain. Some Republicans condemned the bill as an amnesty program for illegals. Discussions between Republican lawmakers in the Senate and the White House could lead in a different direction. Sen. Arlen Specter (R-Pa.) is reportedly heading a group of Republicans who are drafting a competing set of proposals in consultation with the White House. The Bush administration released a new immigration reform plan on March 29, 2007, that would also include a guestworker program under a new “Z” visa program, renewable every three years after payment of a large fine each time. Under the administration’s plan, undocumented workers would need to register for temporary status within six months of the bill’s passage in order for the worker to receive consideration for legal status.

A Senate vote on immigration reform may take place in June. Senate majority leader Harry Reid (D-Nev.) reportedly told Rep. Gutierrez that the Senate immigration debate may be slated for the last two weeks of May. Hearings are expected in the House shortly. If legislation does not pass by the end of 2007, many expect that it will be difficult to move it forward in the 2008 presidential election year.

Compete America, a coalition of corporations, educators, research institutions, and trade associations, endorsed key provisions of the House bill, including updating the employment-based green card cap and exempting key categories of professional; creating exemptions from employment-based immigrant visa and H-1B caps for foreign students receiving an advanced degree from a U.S. university, as well as for foreign professionals who have earned advanced STEM degrees at foreign universities; updating the cap on H-1B visas for highly educated temporary workers; and creating a new student visa category to allow U.S. STEM degree holders who have a job offer to transition directly from student visa to green card. Compete America’s statement is available here.

On March 7, 2007, at a hearing before the Senate Committee on Health, Education, Labor and Pensions, Microsoft Corporation Chairman Bill Gates recommended an increase in the H-1B cap and streamlining the green card process for highly skilled workers. He lamented the current state of the U.S.’s “obsolete immigration system,” recommended changes in STEM education in the U.S., and expressed concerns about the dissuasion of foreign students from studying in the U.S. by the immigration system and new security measures. “Unfortunately, America’s immigration policies are driving away the world’s best and brightest precisely when we need them most,” he said. Mr. Gates predicted that if current trends continue, a significant percentage of all scientists and engineers in the world will be working outside of the U.S. by 2010.

Mr. Gates noted that the number of H-1B visas available “runs out faster and faster each year.” The current cap of 65,000 “is arbitrarily set and bears no relation to U.S. industry’s demand for skilled professionals,” he said, noting that for fiscal year 2007, the H-1B supply “did not last even eight weeks into the filing period, and ran out more than four months before that fiscal year even began.” For fiscal year 2008, Mr. Gates noted, H-1Bs are expected to run out in April, the first month that it is possible to apply for them. “This means that no new H-1B visas — often the only visa category available to recruit critically needed professional workers — will be available for a nearly 18-month period,” he warned.

Moreover, this year, for “the first time in the history of the program, the supply will run out before the year’s graduating students get their degrees. This means that U.S. employers will not be able to get H-1B visas for an entire crop of U.S. graduates. We are essentially asking top talent to leave the U.S.” He noted similar trends with the employment-based visa categories. Among other things, Mr. Gates called for “expedit[ing] the path to permanent resident status for highly skilled workers.” He said, “If Social Security is the dreaded third rail of politics, immigration is its downed electrical wire: a problem everyone knows about, but no one’s sure how to fix, so they just walk away.” Mr. Gates’s testimony is available here.

Meanwhile, a coalition of organizations has released a set of visa policy recommendations, posted online here. The policy proposals emphasize the important role that visa policy plays in both the security of the U.S. and its capacity to attract the best talent from other countries. The coalition includes the Alliance for International Educational and Cultural Exchange, the Coalition for Employment Through Exports, the Heritage Foundation, NAFSA: Association of International Educators, and the National Foreign Trade Council.

USCIS’s announcement about the fiscal year 2008 H-1B application process is available at http://www.uscis.gov/files/pressrelease/H1B_Update.pdf. Information about completing and submitting Form I-129 (Petition for a Nonimmigrant Worker) petitions to USCIS for FY 2008 H-1B cap cases is available here.

An overview of the STRIVE Act from Rep. Flake’s office is available at www.flake.house.gov. The full text of the lengthy bill is available at www.thomas.loc.gov.

Testimony from Emilio Gutierrez, USCIS Director, at a hearing on March 27, 2007, on immigration reform and temporary workers before the House Subcommittee on Homeland Security is available here.

A new report on guestworker programs by the Southern Poverty Law Center that recommends visa portability, wage protections, and requiring the Department of Labor to promulgate regulations for H-2B workers that are comparable to the H-2A regulations, is available here.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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