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The final tally is in and receipts have been issued for the “winners” of the “H-1B lottery.” And now we must deal with the utter frustration of countless U.S. employers and the profound disappointment of the almost 90,000 highly skilled foreign nationals whose petitions were not selected. Such frustration and disappointment will only be punctuated by the receipt of the rejected petitions not fortunate enough to be among the chosen.
It is indeed a most unfortunate circumstance for those U.S. employers who have invested in and benefited from the creative resources provided by highly skilled foreign nationals currently employed pursuant to a temporary post-graduate work authorization and who now must be terminated—unless creative options are explored which test the boundaries of legitimate work authorized alternatives. Indeed, our broken immigration system leaves employers with little choice but to consider an alphabet soup of other temporary work visa categories which are not a proper fit—some of which are just not appropriate or extremely cumbersome (e.g. H-2B temporary need), somewhat disingenuous (e.g., an H-3 trainee visa) or highly controversial and somewhat problematic (e.g., B-1 in lieu of H-1B).
And what of the foreign national? The experience of extreme disappointment is most likely soon accompanied by making immediate plans to depart the U.S. (perhaps after completing four or more years of university study here) or, for those abroad, the realization that a promising career in the United States was nothing more than a pipe dream.
Oh, for the days when the H-1B cap was 195,000 (for FY2001 through FY2003)!
In the absence of comprehensive immigration reform, the Obama Administration has taken another step in the right direction in removing obstacles for skilled workers and entrepreneurs moving to and remaining in the United States. On May 6th, the Department of Homeland Security (DHS) announced the publication of a proposed rule extending employment authorization to spouses of certain H-1B workers. To be eligible, the principal H-1B worker must have an approved I-140 petition (second step of the green card process) or have been granted an extension of his/her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) on the basis of an alien labor certification (PERM application) that has been pending for more than 365 days. In so doing, the Administration is acknowledging the intolerable wait for nationals of certain countries to obtain permanent residence under the existing outdated quotas, and attempting to ameliorate the economic hardship of the H-1B family by allowing a spouse to work. This is certainly a sound – albeit long-awaited-- move, while we hope for the breaking of the gridlock in our Congress in its general inability to bring about the sorely needed overall fix to our broken immigration system.
Updated 05-08-2014 at 10:58 AM by SMalyk
What do Facebook CEO Mark Zuckerburg, Yahoo CEO Marissa Mayer, Google co-Founder Sergey Brin, Intel Director of Government Relations Peter Muller, Qualcomm Government Affairs Analyst Ayush Soni, Microsoft co-Founder Bill Gates, Motorola Solutions Vice President of Human Resources Michele Carlin, Shell’s Executive Vice President for Human Resources (Americas) Bruce Culpepper, Coca-Cola Company Chief People Officer Ceree Eberly, Johnson & Johnson Chief Human Resources Officer Peter M. Fasolo, Executive Vice President of Human Resources at Hewlett-Packard Company Tracy Keogh, Wendy's Chief People Officer Scott A. Weisberg, McDonald's Chief Human Resources Officer Richard R. Floersch, Marriott Corporation President/CEO Arne Sorenson, and Caterpillar Chairman and CEO Doug Oberhelman all have in common?
Apart from being creative, successful, forward-thinking business executives, each signed a letter petition to President Obama, dated March 14, 2013, urging him to move forward with immigration reform for highly-skilled workers. The letter opened by stating, “[o]ne of the biggest economic challenges facing our nation is the need for more qualified, highly-skilled professionals, domestic and foreign, who can create jobs and immediately contribute to and improve our economy.” The letter went on to explain that our broken immigration system is in need of major reform for highly-skilled professionals, in stating: "because our current immigration system is outdated and inefficient, many high-skilled immigrants who want to stay in America are forced to leave because they are unable to obtain permanent visas. Some do not bother to come in the first place. This is often due to visa shortages, long waits for green cards, and lack of mobility. We believe that numerical levels and categories for high-skilled nonimmigrant and immigrant visas should be responsive to market needs and, where appropriate, include mechanisms to fluctuate based on objective standards..."
The resounding message in the letter was that the experience of not only the tech sector, but of all major U.S. industries, shows us that immigrants to the U.S. are a powerful force for entrepreneurship and innovation at every level, from start-ups to multinational corporations. The words of Peter Muller at Intel Corp resonate with the madness of the H-1B cap season, in stating, “[w]e can't find enough workers so we really need to fill that gap [for highly-skilled jobs] — and having a working immigration system is an important part of that".
All indications point to a record number of H-1B petitions filed during the first week of April—petitions seeking to fill highly-skilled professional positions that employers across the U.S. are unable to otherwise fill with qualified U.S. workers.
And what will this H-1B year’s lottery bring? For those selected, an opportunity to remain in (or move to) the U.S. and become part of workforce that consists of the world’s brightest minds to help the United States to remain competitive in the world’s economy.
As to those not selected -- utter frustration to countless U.S. employers and profound disappointment to tens of thousands of highly skilled foreign nationals, a majority of whom received their undergraduate or graduate degrees from a U.S. college or university. And as stated by Ayush Soni of Qualcomm: "We are competing globally now. We're also now competing with Chinese companies, Taiwanese companies, Korean companies. If we can't put a worker in San Diego or wherever our supply chips are, then they'll go and compete somewhere else. That's a very, very big detriment on our business.”
The petition to the President spearheaded by Mark Zuckerburg was sent a little more than one year ago. So as we are about turn away approximately 1 out of 2 of this year’s H-1B applicants, due to an outdated, insufficient H-1B quota, how many more years will it take to have a more logical U.S. immigration policy in place—one which would attract the tens or hundreds of thousands of people who we want to attract in particular, in terms of education and skills? Where we not only educate them, but in the words of Warren Buffett, “give them an opportunity to enhance their talents and have them stick around here."
As we approach Groundhog Day, U.S. employers are once again confronted with the very real prospect of having to deal with the H-1B “lottery.”
The very existence of the H-1B cap has been labeled a form of “national suicide” by former New York Mayor Michael Bloomberg; "absurd" by an Economics Editor of Bloomberg Businessweek; and “evidence of a dysfunctional market” by a senior fellow at the Center for Global Development in Washington.
In the coming weeks, U.S. employers will expend in-house resources and engage counsel to prepare and file H-1B petitions during the first week of April in the hope that its petitions will be among the 85,000 selected by U.S. Citizenship and Immigration Services ("USCIS"). To be sure, without imminent new legislation, there will be a lottery to determine which petitions are considered for adjudication. For the last fiscal year, approximately 150,000 petitions were filed during the first week of April. Given the pent–up demand since then, it will not be at all surprising if more than 200,000 petitions are filed – leaving employers with less than a 1 in 2 chance of having their petition selected and, if selected, then having to wait for an October 1, 2014 effective date of employment.
The natural consequence of being married to an arbitrary H-1B cap? Depriving U.S. employers of hiring what they deem to be the best qualified and, in most cases, sending those not selected in the random lottery (many of whom are educated at U.S. colleges and universities) back to their home countries — in essence giving a “gift to our rival economies.”
It is indeed unfortunate that Congress cannot take its collective head out of the sand and realize that the current political stalemate with respect to immigration reform is working to the extreme detriment of the U.S. employer. It is about time that our lawmakers recognize that the tried and true principle of “supply and demand” should override the divisive political process.
Is it too much to hope that we are not living the same day all over again on April 1, 2015?
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
Updated 01-23-2014 at 01:46 PM by SMalyk
On the heels of this administration's heightened immigration enforcement through the inconsistent application of "prosecutorial discretion", USCIS' increased reliance upon unannounced H-1B audits and ICE's I-9 audit money making machine, now comes President Obama's recent online forum pronouncement that "the H-1B [program] should be reserved only for those companies who say they cannot find somebody in that particular field."
Is this truly the belief of our President or perhaps just a misguided attempt to placate the unemployed U.S. workforce?
To be sure, even a recently reduced 8.3% unemployment rate in the U.S. is unacceptable and must improve before the economy will respond accordingly. With that unfortunate reality, comprehensive immigration reform to address, among other things, job creation and expansion appears to be unattainable any time soon. But to completely undermine one of the few work visa categories available that can attract highly skilled foreign nationals to the U.S., is nothing but shortsighted.
For the time being, the question posed will remain unanswered as, apart from President Obama's seemingly off-the-cuff pronouncement above, to date, the President has not offered any specifics about what changes he would like to see in the H-1B program. Perhaps we should refrain from reading too much into such ill-advised remarks as it is, of course, campaign season whether we like it or not. For example, we have yet to hear the President's thoughts on the arbitrary cap set by Congress which currently has left U.S. employers without the option of hiring new H-1B workers for more than 8 months to come.
Perhaps most troubling is that the President's latest pronouncement may underscore his lack of vision for true immigration reform--reform that would provide workable solutions that, when applied together, would fix the totality of our broken, outdated, and inadequate immigration system. A fix that would exponentially increase the U.S. Gross Domestic Product, increase wages for all workers, and grow the American economy for all.
Obama: Friend or foe to the H-1B program? The jury will most likely remain out for awhile.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP