03.20.08

The H-1B anxiety

Posted in Policy at 8:16 pm by Lalita Haran

Just as last year, the U.S. employers desiring to hire foreign nationals on h-1b visa are scurrying to file their petitions and hoping that their petitions would be selected in the computer generated random selection process trying to hire the most employees they could.

Yesterday, after much suspense in the air, USCIS released an interim rule and issued a fact sheet disclosing that the Rule would prohibit ‘multiple and duplicate’ filing by an employer for the same employee. It appears that several employers and prospective employees were planning to file multiple and duplicate petitions to increase their odds of success in the computer generated lottery selection process.

The prohibition applies to job offer(s) from the same employer to the same employee whether the petitions are for one job or different jobs. In view of the limited number of the H-1B admissions available for the FY, the policy behind this rule is to afford employers equal opportunity in hiring H-1b workers. The rule however exempts “related employers” like parent and subsidiary companies etc. from the prohibition. In other words, related employers may file petitions for the same foreign national as long as the positions are different and there is a “legitimate business need.”

The last minute rule has sent people scurrying for clarifications whether multiple petitions in certain situations are ok or not. It appears that people are prepared to file multiple petitions because if their petitions are not selected the USCIS would refund their filing fee and they lose nothing. The rules also require that if an exemption is claimed erroneously the fee would not be refunded.

The H-1B petitions may be filed as early as April 1 each Fiscal Year for the employment start date of the first day of the FY i.e. October 1. The foreign national must have the qualifications to fill a professional position (specialty occupation); generally, a bachelor or higher level degree or a combination of education and experience, and is hired for a permanent position.

H-1B is a much wanted visa category as the foreign national enjoys long enough stay (6 yrs.), is subject to the least limitations and can seek legal permanent resident status while continuing to maintain the h-1b visa status.

The total number of H-1B admissions are subject to a fixed numerical limit each Fiscal Year (the ‘CAP’) that determines how many foreign nationals could be hired each year under the “specialty occupation” category. The annual numerical limitation was raised each year following the enactment of “American Competitiveness and Workforce Improvement Act of 1998” (ACWIA) that was later amended by the “American Competitiveness in the Twenty-First Century Act of 2000” (AC 21). Until FY 1996 the number of foreign nationals hired in the h-1b category was much less than the numerical limitations (CAP) imposed for the category. In FY 1997 the CAP was reached in September (a month ahead of the end of the Fiscal Year) and in the next FY by May 1998.

An all time high was reached when the Congress increased the annual cap to 195,000 for the years 2001, ’02 and ’03 from 115,000 in 2000. The numerical limits were restored to 65,000 in the FY 2004 i.e. from October 1, 2003. The 2004 “H-1B Visa Reform Act” also created a cap exemption for 20,000 advanced degree graduates of U.S. universities, these numbers are taken away from the above mentioned total numerical limit of 65,000 and do not raise the CAP in any way.

In FY 2004, the annual cap was reached early in the year and on February 17, 2004, USCIS announced no further cap-subject applications would be received. The coming years showed the same trend with the visa numbers getting exhausted much earlier each FY. In 2008 the USCIS anticipated that the CAP would be reached on the very first day of the FY. In an unprecedented event, on the very first day when the petitions could be filed for the FY 2008 (i.e. April 1, 2007) USCIS received enough number of applications that far exceeded the available H-1B admissions for the entire year. However, as required by the Rule, USCIS continued accepting the applications for the first two days of April, 2008 and then refused all others. The cap subject applications were pooled to be selected by the computerized random selection.

As the H-1B Visa numbers remain unchanged at 65,000 for the FY 2009, employers and foreign nationals, find themselves constrained by the numerical limits imposed by the U.S. immmigration law, because the demand for this visa category far exceeds the allowable numbers and think of ways to maximize their chances of H-1B allotment in the present lottery system. Immigration advocacy groups and businesses equally feel that nation’s immigration laws are hampering the economic growth by restricting the employment of foreign nationals and are the major cause for movement of business opportunities out of U.S.

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