The End Of The High-Flying H-1B
The End Of The High-Flying H-1B
Date: Wednesday, November 05, 2003 10:46 PM
JOB DESTRUCTION NEWSLETTER
www.ZaZona.com
Sometimes the best way to learn about H-1B is to see what the
immigration attorneys are saying. In this case Alice Yardum-Hunter
whined a lot about the fact that the H-1B yearly cap dropped, which
would be expected from an immigration lawyer, but she also revealed a
few other gems for us to ponder.
The first shocker is that the number of H-1B applications that have
been received by the DOL in 2003 is a whopping 231,000! Of those,
108,000 were for new H-1Bs so the rest of them must be renewals and
exempts. On top of all of that, there are still 22,000 petitions
pending for approval.
That's a lot of H-1Bs, folks! We are importing huge numbers of H-1Bs
when nine million people in the U.S. are unemployed. According to the
BLS, unemployment in September for Computer and mathematical
occupations was 180,000 and for architecture and engineering
occupations it was 138,000 - and that's not counting the ones that have
given up looking for a job.
Total unemployment among high-tech workers totals 318,000 while 231,000
visas have been received. Although not all H-1Bs are used for technical
positions, it wouldn't be too far fetched to say that if all H-1B and
L-1 visas in 2003 were revoked, unemployment for high-tech workers
would approach zero!
Despite the obvious harm that H-1B has wrought on American workers,
Hunter is warning companies that the maximum number of visas might run
out by April of next year. You might think she would tell employers to
hire American citizens, but of course she is an IMMIGRATION attorney so
that's not going to be on her list of priorities. Her suggestion to
H-1B hungry companies is to beat the herd by applying for premium
processing in order to speed up the visa approval process. Thanks to a
massive drop in the fees being charged as of October, employers can pay
for premium processing and still save $1,000 in cold cash. With deals
like that, why hire an American citizen?
Hunter also rants about some rules that I haven't heard of before.
Apparently the BCIS is requiring Requests for Evidence (RFE). The
lawyer said that these RFEs are "onerous, maybe even venomous" and
things that employers won't "be able to respond to". Just in case you
are wondering what could be so venomous about these RFEs, employers
might have to prove some of the following:
* H-1Bs aren't terrorists or a threat to national security
* The job requires a minimum of a bachelor's degree or equivalent
experience to perform the job
* The H-1B will only come into the U.S. temporarily.
* The employer has the money to pay the H-1B.
These requirements are written into the laws that govern H-1B, but
according to this lawyer, it's just not fair that employers would have
to prove they are obeying the law. Leave it to a lawyer like Hunter to
figure out how to get around the law - she advises employers to apply
for as many H-1Bs as soon as possible to beat the date when these
onerous RFEs will be required. Hunter never explained why companies
aren't capable of proving that they are obeying the law.
http://www.ilw.com/lawyers/colum_article/articles/2003,1106-yardum.shtm
The End Of The High-Flying H-1B - 30 Days Later
by Alice Yardum-Hunter
Now that it's November, and the big waves of H-1Bs have turned into a
low tide, where do we stand today? Several rules have changed, most
important of which is the number of H-1Bs available the 2004 fiscal
year, which runs from October 1, 2003 to September 30, 2004. In
addition, on October 1, rules about H-1B dependent employers,
Department of Labor's expanded investigatory authority, and the
$1,000.00 filing fee for training U.S. workers and enforcement of the
H-1B program were eliminated.
On October 22, 2003, the Department of Homeland Security released
statistics on H-1B usage for the past four years. Peaking in 2001, some
330,000 H-1s (initial petitions, including those not subject to the cap
and extensions) were approved. During each of the past two years, less
than half of those figures, approximately 79,000 approvals counted
against the cap. The total number of H-1B visa holders in the U.S. is
about 700,000. The number is this high as H-1B aliens are permitted to
remain in the U.S. for a total of six years, generally.
The total number of new H-1s available decreased from 195,000 to 65,000
annually on October 1. Given the tension between the need mainly for
highly technical engineers and computer professionals, and relatively
high US unemployment, the notion of raising the cap legislatively again
soon is daunting. To get around this, the Senate Judiciary Committee,
headed by Orrin Hatch (R-Utah) is considering adding to categories of
aliens exempt from the H-1 cap. Those currently exempt include most
H-1Bs who continue in this status and initial H-1B who work for
institutions of higher learning, certain research and governmental
entities. Intel Corporation, in particular is pushing for an exemption
for foreign graduates in technical fields, which are the bulk of H-1B
visa holders today. Nearly half of all college students in U.S.
technical programs are foreign students. To sweeten the deal, there is
also discussion of adding back the $1,000.00 fee to train US workers
and to enforce the H-1B program that sunsetted on October 1.
Multinational corporations, hi-tech companies, trade organizations and
immigration lawyers argue that without an H-1B program that responds to
the needs of our economy, we will lose our competitive edge globally.
Despite the obstacles posed by labor unions in the U.S., these groups
are attempting to raise the cap to at least 100,000 annually.
There is good reason to again increase the cap early rather than to
wait for another crisis like the one that precipitated the progressive
raising of the cap. In the late 1990s the tech boom was ballooning, and
the need for H-1s far exceeded the numbers available. This left aliens
and their prospective U.S. employers in limbo for many months. When the
numbers are exhausted for the fiscal year, it is necessary to wait
until the following October 1 for visa issuance or status change. As a
result, many aliens sat unproductive while their H-1 changes of status
were pending, or they became visitors or foreign students in other
educational programs. Those who were abroad had to simply wait before
entering the U.S. to work. But as with all lumbering bureaucracies, the
U.S. Congress did not act when the need was most acute. They waited and
increased the numbers at a point when they were not needed in such
great numbers. Now that the economy is picking up again, we could
easily find ourselves in the same position. Efforts to avoid this
happening again should be addressed. The antidote is for Congress to
act more quickly this time.
Far more than most people realize, U.S. Citizenship and Immigration
Services (CIS), formerly the Immigration and Naturalization Service
(INS) received 231,000 H-1Bs for both initial and continuing employment
in 2003. Of those, 108,000 were for initial H-1 employment. At the end
of the fiscal year, there were approximately 22,000 petitions still
pending. Special rules allocate 7,000 visas to Chile and Singapore
under free trade agreements. All those petitions will count against
lower 65,000 2004 cap, leaving only about 35,000 initial H-1s this
fiscal year. Clearly, even compared to the lowest figures in recent
times, new H-1Bs will run out before the end of the fiscal year,
possibly before April.
The number of received applications was up in 2003 from the year before
by 15,000 applications. 2002 saw the lowest total number of H-1Bs
received by the Service in the past four years, not surprising given
recent past downward economic history. The highest number filed was in
2001, but the increase in total filings from 2002 to 2003 was up about
to 7%. This is upward bounce, coincidentally reflects the same
government percentage as the growth rate of the overall economy in the
third quarter of 2003.
As attorneys, we must assume the cap will be hit quickly. As clients,
you must move on your H-1 opportunities as soon as they present
themselves. We must avail ourselves of premium processing, and pay a
filing fee of $1,000.00 beyond the normal $130.00 filing fee for
initial H-1Bs. This isn't a big shift as we were already paying this
amount just for normal processing until October 1 came because of the
training and enforcement fee that ended. Before then, the filing fee
with premium processing was $2,130.00, sometimes in excess of the
attorney fee. It is a sobering thought that the U.S. government
adjudicator's decision has more value than the tremendous work of
highly educated attorneys in the same process. That aside, we get more
bang for our buck with premium processing today, where for $1,000.00
less than a month ago, we can have a response from CIS within 15 days.
At the same time as all this, the CIS is issuing Requests for Evidence
(RFE) in many H-1B cases. Requests for Evidence are just that: after
filing the case, the government wants more information and
documentation on issues they specify. These RFEs are more prevalent
today as a result of greater overall immigration scrutiny that has
developed beginning with various measures against all kinds of aliens,
and U.S. citizens after 9/11. The RFE phenomenon is relatively new
though, and has grown over the past few months. It is necessary to
respond to RFEs quickly too, because numbers are not subtracted from
the cap until they are approved, and with time fleeting, cases filed
later in time could take precedence of those filed earlier. Cases are
put at the end of the queue when received back at CIS. Since 84 days
are available to respond to an RFE, the more time you take to respond,
the closer your case comes to hitting the cap. The RFEs being issued
are onerous, maybe even venomous. One official of the California
Service Center actually stated at a meeting of the American Immigration
Lawyers Association in October, that they are issuing RFEs that, "You
will not be able to respond to".
What does "to train US workers and to enforce the H-1B program's" all
mean? If you intend to apply for an H-1B, do so quickly and thoroughly
in anticipation of an RFE, and if it is an initial H-1, pay the premium
processing fee. If your H-1 is not an initial H, the premium processing
is likely not necessary as H-1s are given an automatic extension of 240
days employment authorization (approximately 8 months) after the date
of expiration of authorized stay when a timely extension is filed. If
after six months, the H-1 extension is not adjudicated, a request for
premium processing should be quickly considered, and filed. The six
month suggested time is recommended to allow time to respond in the
event of an RFE, which may be issued even to H-1 aliens who have been
previously approved for
H-1B status.
This also means providing far more initial evidence. There are two
common reasons stated in RFEs: that the position requires a minimum of
a bachelor's degree to perform, and that the alien holds a minimum of a
bachelor's or equivalent in education or experience. Other issues that
require more beefed up evidence include the temporariness of the stay
and the financial wherewithal of the employer.
We are in unsafe waters with H-1B processing. Tread very carefully.
Copyright 2003. All Rights Reserved. Reproduced with permission.
About The Author
Alice Yardum-Hunter is a California attorney in practice for more than
20 years. Ms. Yardum's practice concentrates exclusively on immigration
law, particularly business related immigration matters. She is a former
Commissioner to the State Bar of California, Board of Legal
specialization, Immigration and Nationality Law Advisory Commission.
Alice Yardum-Hunter is certified as a specialist in Immigration and
Nationality Law. Ms. Yardum-Hunter may be reached at:
alice@yardum-hunter.com, by phone at (818) 609-1953, fax at (818)
609-1964 or at 15915 Ventura Boulevard, Penthouse #1, Encino,
California 91436.
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