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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