by Elaine Young
In 2013, Senator Orrin Hatch (R-Utah) was part of the group that drafted and passed a comprehensive immigration bill in the Senate. The bill later fizzled out in the House of Representatives. This year, Senator Hatch introduced the Immigration Innovation Act of 2015, which addresses one aspect of comprehensive immigration reform—increasing the number of high-skilled worker visas, referred to as H-1B visas. The bill is commonly known as the “I-Squared Act.”
What problem is the I-Squared Act trying to address? The one aspect of the “broken” immigration system that most parties can agree on: the lack of availability of visas for foreign nationals with science and tech degrees. To provide a sense of the problem, look at what happened at U.S. Citizenship and Immigration Services (USCIS) in April 2015.
USCIS begins accepting H-1B petitions each year on April 1, which is six months before the start of the next federal fiscal year. Congress has set a cap of 85,000 new H-1B visas for each fiscal year, with 20,000 allocated as a priority to workers with U.S. graduate degrees and 65,000 allocated to those who have only a bachelor’s degree or the equivalent. This year, USCIS received 233,000 petitions for those 85,000 spots. Last year, USCIS received 172,500 petitions.
My experience representing companies in H-1B filings is that employers do not hire H-1B workers because it is easier than recruiting and employing American workers. They usually hire a foreign national because they cannot find an American willing and able to do the job, and they are willing to deal with the cost and trouble of the H-1B petitioning process. I have clients who try every year to hire or retain Americans, then attempt to get workers to the United States with H-1B visas to fill important tech jobs, but end up having to set up subsidiaries in India or elsewhere and have the tech work done remotely.
The I-Squared Act would increase the minimum number of available H-1B visas to 115,000 and create a fluctuating demand-based cap as high as 195,000. When the economy is strong, even 195,000 will be insufficient. But the I-Squared Act is a step in the right direction, and fortunately, both sides of the aisle are supportive of increasing visa availability for high-skilled H-1B workers.
What should an employer do when an H-1B visa is not available? We have written before about H-1B alternatives. Here’s a recap of some of those alternatives:
- TN visas, which are similar to H-1Bs, are available under the North American Free Trade Agreement (NAFTA) to Canadian and Mexican professionals holding a minimum of a bachelor’s degree who are coming to work in a designated profession. The list of professions is fairly comprehensive: college teachers, dieticians, most scientists, computer systems analysts, dentists, lawyers, graphic designers, architects, social workers, and so on. A complete list can be found on the website of the United States’ Canadian embassy.
- H-1B1 visas are specially designated visas with qualifying criteria similar to the H-1B criteria set aside for professionals from Chile and Singapore. There are 6,800 H-1B1 visas available, and the cap has never been reached. Unused visas are added to the general H-1B pool for the following year.
- Australians enjoy the E-3 visa, with terms similar to the H-1B. There are 10,500 E-3 visas available each year, but the cap has never been reached.
- H-3 visas can be used to train professionals for a position abroad when training is not available outside the United States. There is no cap on H-3 visas, but cases are not usually approved unless there is a true training program in place, with at least some classroom element.
What can you do to increase your chances of winning the H-1B lottery next year? Unfortunately, nothing—except perhaps making a call to your congressional representative to voice support for better H-1B
legislation.
Elaine Young is an attorney Kirton McConkie in Salt Lake City, Utah. She has significant experience handling the immigration, tax, and benefits aspects of cross-border employment, including inpatriate transfers and working with counsel around the world to help U.S. companies send their employees abroad. She may be contacted at eyoung@kmclaw.com.