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Attorneys: Visa program needs new life

Demand for H1-B non-immigrant visas has exceeded the U.S. cap of 85,000 per year for the past several years.

January 27, 2017
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A visa program that was created to allow employers access to highly skilled, highly educated foreign professionals is not meeting demand, according to two local attorneys.

The H1-B is a temporary, nonimmigrant visa category that allows employers to petition for highly educated foreign nationals to fill jobs that require a bachelor’s degree or equivalent experience, provided the foreign worker meets the qualifications.

Since the category was created in 1990, Congress has limited the amount of H1-B visas it grants to 65,000, with an additional 20,000 available for those who hold master’s degrees or doctorates from an accredited U.S. college or university.

Employers may petition U.S. Citizenship and Immigration Services (USCIS) for H1-B visas every year beginning in April.

If USCIS receives petitions beyond the cap within the first five business days of April, it will cease accepting applications at the end of the fifth business day. USCIS then uses a computer-generated random selection process, or lottery, to select petitions for processing.

In last year’s lottery, for fiscal year 2017, there were 236,000 petitions filed. For fiscal year 2016, 233,000 petitions were filed. USCIS estimates the numbers will be even higher this year.

Susan Im, president and immigration attorney at Grand Rapids firm ImLaw, said the cap was set during a different era in America and has not kept up with the times.

“It was over two decades ago, and there were different demographics at the time,” she said. “Now, we have a global economy, talented folks all over the world and employers who need their skills.”

Nathaniel Wolf, an immigration lawyer at Mika Meyers in Grand Rapids, agreed.

“If any part of the program needs to be changed, it’s the 65,000 cap,” he said. “I just don’t think that’s practical given the amount of applications made in any given year.”

Wolf and Im said they tend to see the most demand for H1-B visas in the science, technology, engineering and math (STEM) sector.

“I think, certainly, the medical industry has a need for the ability to bring in researchers and other highly qualified individuals to do the work,” Wolf said. “We’re seeing more in this region with (Van Andel Institute) and the hospitals. Certainly, technology is a big one across the country. And for any region that wants to target technology, it’s difficult to do so without realistic caps.”

In Michigan, the auto industry also is one of the major players that could benefit from an increased cap, Wolf said.

Im said while detractors of the program have expressed concern about its effect on U.S. jobs, the “vast majority” of employers petitioning for H1-B visas have done their due diligence.

“You see employers turning to the H1-B program because they’ve hired all the U.S. workers they have access to, and their competitors have hired the rest,” she said. “They just can’t get enough, so they make use of the H1-B program.”

According to an ImLaw memo, certain organizations are exempt from the H1-B visa caps, including higher education institutions, nonprofit organizations that have an affiliation agreement with higher education institutions, nonprofit research facilities and nonprofit government institutions.

In addition, some for-profit organizations that employ H-1B workers who will perform all or a significant portion of their work at qualifying institutions also can claim exemption from the cap.

“I think the assumption there is that the government wants to promote the research and education mission of universities,” Im said. “So, they want to make sure the universities have access to the best and the brightest workers.”

Effective Dec. 23, 2016, USCIS raised government filing fees for employers sponsoring foreign nationals for the H1-B visas. The filing fee for Form I-129 increased from $325 to $460, and the filing fee for Form I-539 for H-1B dependents increased from $290 to $370.

“I hope the fee increase in December helps USCIS get processing time back to a reasonable amount of time,” said Im, noting the processing time at UCSIS had “skyrocketed” due to lack of funds.

Wolf agreed: “The amount of time it takes to get an approval once you’ve applied could be streamlined. If you invest the appropriate resources or lift the caps that are currently there, that will come, and you’ll have more people to review more applications.”

Im said it’s “hard to predict” what might happen to the H1-B program under a Trump administration.

“One might argue that because Trump used H1-B workers on some of his projects, he might be in favor of the program,” she said. “But you also could argue he would target it, because he thinks it could take jobs away from U.S. workers.

“He made immigration a big issue in his campaign, but this is a long-established process. So, it’s different from the undocumented workers’ side of immigration issues.”

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