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The H1B visa like most topics in immigration law, is not without controversy. Inevitably, when times get tough, people look at immigration as a category in which to cut back. It is almost as instinctive as cutting down expenses because budgets have shrunk and the economy looks bleak. Whether we should cut back on temporary worker visas because of the slowness of the economy is a complex question that balances our investment in the education of international students and individual employer’s needs against the rise in unemployment.

On April 1, immigration lawyers throughout the United States will begin the rush to file H1B visas for their clients. As background, the H-1B is a temporary visa for professionals, which means in common sense terms, that the visas are going to be given to individuals with a bachelor’s degree or above who will fill professional occupations with employers in this country. The quota for new H-1B visas is very limited at 65,000 per year, although for a few years in the early part of this decade the quota was 195,000. This was the period inspired by the Dot.com boom and ended in 2003. Additionally, 20,000 H-1B visas are available for beneficiaries with U.S. master's degrees. The purpose of this latter category is to keep in the U.S. those international students with advanced degrees obtained at U.S. institutions. The H-1B cap applies only to "new" H-1B petitions, which means extensions of H-1Bs, changes of employers; and some exempt categories related to institutions of higher education and research are not subject to the cap. In total, there are probably several hundred thousand H-1B temporary professional workers in the United States at any one time.

The process of applying for a new H-1B is very intense and starts with a lottery conducted each year on April 1st. Those individuals chosen in the lottery begin employment on October 1st. Since the quota is filled quickly each year, the filing period is short. Last year, The Department of Homeland Security (“DHS”) received approximately 163,000 petitions during the five-day filing period in April, and conducted a random lottery to select the 85,000 petitions that would be eligible for processing. Thus, for most applicants it has been a 50/50 proposition whether they will get chosen in the lottery. The bottom line is that If you don’t file the H-1B in the first week of April, you have to wait a year to apply again, which is a significant delay that often means the employment opportunity is gone.

The H1B political debate is encapsulated in recent news headlines. For example Congress has proposed legislation that banks should not be allowed to employ H-1B workers while taking TARP funds. Additionally, Microsoft has recently been criticized for massive layoffs while calling for an increase in H-1B quotas. Senator Grassley, among others, has stated that banks receiving bail out money shouldn’t be allowed to fire U.S. workers and hire foreign labor. The Microsoft flap involves announced layoffs of 5,000 employees while Bill Gates presses Congress to lift the 65,000 per year cap on H-1B visas.

The desire to protect the US workforce from foreign workers has merit but we also need to look at the overall composition and benefits of the H-1B applicant pool before we rush to judgment. Is it consultants from foreign nations who are filling positions that could be held by US workers that will apply for the H-1B visa or do these applicants have more intimate ties to the US that makes the equation more balanced?

The vast majority of clients whom we represent in our firm applying for the initial grant of H-1B status are international students educated in universities and colleges throughout the United States. Our post secondary institutions have recruited them from around the world, educated and nurtured them. These students are given F-1 student visas and are concentrated mostly in the sciences, engineering, architecture, and business. They tend to be highly talented and enroll in “practical” areas of higher education. At the end of their studies, they go back to their homeland or are given a year of optional training experience. If they still desire to stay in the United States after optional practical training, their employer may apply for the H-1B visa, which allows them to stay here up to 6 years in professional categories.

The fact that there is a gap of six months between application in April and the start of employment in October has resulted in the skewing of the H-1B category toward F-1 international students. Companies are normally unwilling to seek H-1B visas for foreign applicants when they must wait six months to employ them and the odds are only 50 percent that their candidate will be chosen in the lottery. It just isn’t good business practice. On the other hand, international students with employment authorization to fill this six month gap through optional practical training are often worth the time and investment.

There is global competition for the most talented students from our universities. Many international students are the best and brightest from their countries who have been educated by us and have adapted to an American way of life. The United States has a choice to either include them in our workforce or send them abroad to compete against us. It seems in our best interest to try and keep them. They play important roles in basic scientific research—in some circumstances they represent a majority of a laboratory performing cancer or leukemia research. In the global economy, employers are motivated to find the best individuals they can find despite the difficulty of going through lotteries and paying fairly high DHS filing fees. If these employers can’t find the talent they need in the United States, they have the ability to send these jobs abroad especially if they are multi-national companies.

The bottom line is that on April 1, lawyers must have their H1B petitions filed with DHS. While the debate continues about whether to increase or limit H1B visa numbers in the future, it remains imperative that these applications be prepared immediately and timely filed.

To work with us in filing your H1B visa petition, please contact Davidson & Schiller at visa@dsimmlaw.com.