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The H-1B Visa Blog by Siliato and Malyk



    by , 09-16-2011 at 06:47 AM (The H-1B Visa Blog by Siliato and Malyk)
    Perhaps this is old news, but the U.S. appears to be losing its edge in attracting and retaining not only the best and the brightest, but even those who possess a minimum of an undergraduate degree.  According to a recent study by the Organization for Economic Cooperation and Development ("OECD") at present, 25% of the 255 million people worldwide with a bachelor's degree or higher currently reside in the United States. But that share is expected to shrink in the coming years, as developing countries such as Korea and China push more and more of their citizens into college. China already accounts for 12% of the world's college-educated working population and, among young workers aged 25-35, China accounts for 18% of the college-educated. 
    For reasons unclear to the authors of this blog (other than that the United States charges more in tuition than any other country in the survey), the United States is showing no growth in the share of young people who go to college compared to a generation ago.  According to the OECD study's author, the United States is quite alone in that young people entering the labor market are not better educated than people leaving the labor market. Indeed, as the OECD writes, "the expansion of tertiary education in many countries has narrowed the advantage of the United States both in overall levels of attainment and in the sheer number of individuals with tertiary education."
    While a meaningful reduction in U.S. college tuition across the board is, of course, not in the cards, there are other avenues available to attract and retain the college educated.  A step in the right direction would be to eliminate altogether the H-1B cap that has been arbitrarily set by Congress.  The U.S. caps the H-1B "specialty occupation" visa at 85,000 per year. As of September 9th, USCIS advised that it has received 32,200 regular cap cases and 16,700 against the U.S. advanced degree cap. Based on current projections (with usage about the same as that of the last fiscal year), this year's limit is likely to be exhausted in January 2012--which means that, after such date, employers will be unable to hire new H-1B workers who are subject to the cap until October 1, 2012.
    Another option would be to implement a plan proposed by Mitt Romney--one in which foreign nationals with a foreign master's degree in science, engineering or math (rather than an advanced U.S. degree) would not only be exempt from the H-1B cap, but also be eligible for a green card.  The latter green card plan is one that has been proposed previously by lawmakers on both sides of the aisle without success.
    In today's economic environment, no doubt it may seem counterintuitive to some to implement any plan that enables more foreign nationals to work either temporarily or permanently in the U.S.  A futuristic view, however, of the continued shrinking of our college-educated population certainly does not seem to be a good alternative.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
  2. Cutting Off Our Flow To Spite Our Pace?

    by , 05-26-2011 at 01:34 PM (The H-1B Visa Blog by Siliato and Malyk)
    As espoused by these authors previously (as most rcently in our last blog entry) it is no secret that the H-1B visa is not the hot commodity it once was.  Whether it be the state of the economy, increasing awareness by prospective H-1B candidates that more attractive opportunities may exist abroad, U.S. employers' aversion to the increased fees and other liabilities of the H-1B program or just the general malaise of our government leaders in attracting the best and brightest from around the world to our shores, make no doubt about it - the H-1B visa is being under-utilized. 

    To opponents of the H-1B program, such a recent phenomenon is good news (as such "specialty occupations" are now being purportedly being filled by U.S. workers and not immigrants); to proponents of the program, a cause for concern?  Is such decreased usage actually a foreboding?

    A recent report by the nonpartisan National Foundation for American Policy, found that about two-thirds of the finalists at this year's Intel Science Talent Search (a national contest based on solutions to scientific problems -- known as the "Nobel Prize" of high school science), were born to parents born in either China or India. Only 12 of the 40 finalists had parents who were U.S. born; 16 had parents from China, 10 were born to Indian parents, one to parents from Iran, and another from South Korea.  Of important note, almost all of the finalists' immigrant parents came to the United States on H-1B visas.

    I suppose one could opine that such a disproportionate number of nascent "Nobel Prize worthy" finalists being offspring of H-1B workers is merely happenstance.  On the other hand, one can look at a recent list of actual Nobel Prize winners and draw a completely opposite conclusion -- that preventing or discouraging the entry of H-1B visa holders, skilled immigrants and family-sponsored immigrants would shut off the flow of a key segment of America's next generation of scientists and engineers.
    Let our leaders be the judge.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
  3. Where has all the luster gone?

    by , 05-12-2011 at 03:01 PM (The H-1B Visa Blog by Siliato and Malyk)
    For the third year in a row, the demand for a "coveted" H-1B visa number has dwindled. Coincidently, the Wall Street Journal reported this lack of demand at the same time it highlighted U.S. investors' recent about-face for silver's luster. While a tangible connection between the two is tenuous at best, the H-1B program, much like the commodities markets, appears to have lost its cachet. 

    Whereas, in both April 2007 and April 2008, demand far outweighed supply and the available H-1B visa numbers were used up in a matter of 24 to 48 hours, this April only 8,000 of the available 65,000 numbers were scooped up in the first five days of opening the cap to qualified candidates. The Wall Street Journal article linked above only serves to reinforce what has become a disturbing trend largely caused by the isolationist immigration policy in the United States.  While the slow pace of the U.S. recovery is certainly another factor in the declining luster of the H-1B visa, the article describes several other key factors are in play, including  increased opportunities for skilled workers in their respective home countries, increased fees for high users of the "specialty worker" visas, attacks on the H-1B program by congressional foes of the program and the recognition by U.S. employers that it has become somewhat of a liability to hire H-1B workers.

    It is indeed alarming that, despite a well-documented shortage of homegrown engineering and scientific talent in the United States, our country's anti-immigrant climate is still alive and well and clearly serving to drive some of the best and brightest from around the world back to their home countries after they have been  educated by our universities.  Is it no wonder that New York City Mayor Michael Bloomberg has referred to the current immigration policy in the United States as a form of "national suicide?"

    In addition to the largely isolationist immigration policies in this country, perhaps one of the ways in which the United States is committing the so-called  "national suicide" is through its opaque system of security checks.  Through a euphemism known as "administrative processing," countless H-1B visa applicants (who have already received approval of the classification from DHS and some of whom have spent several years in the U.S. as students or on previous work visas) are delayed abroad for several months - and in some cases for more than a year - awaiting clearance by the State Department from one or more of the "animal farm" reviews (Condor, Donkey and Mantis).  These interminable bureaucratic delays in making a decision exist even though government officials acknowledge that less than 1 percent of those screened raise any legitimate security concerns.

    The foregoing offers this troubling conclusion: the United States, a country built by generations of ambitious, hardworking newcomers, seems no longer interested in attracting and keeping skilled immigrants.  Our nation is experiencing a "brain drain" for the first time in its history.  The silver - let alone the gold - luster of our shores is diminishing, yet our leaders do not appear to connect the dots to our broken immigration system.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
  4. Early Season H-1B Musings

    by , 04-20-2011 at 11:32 AM (The H-1B Visa Blog by Siliato and Malyk)
    The early returns are in and projections for when the  H-1B cap will be reached for the 2011 season (FY 2012) have already begun.

    Unlike the April filings in 2007 and 2008, when the H-1B cap was reached during the first week (if not the first days), the last three (3) H-1B cap filing seasons (April 2009, 2010 and 2011) have seen a steady drop in early filings.  Indeed, in the first week of April 2009 there were approximately 42,000 cap subject petitions filed; in 2010, approximately 13,500; and this year, only 10,400 were filed in the first week.

    So, this begs the question of when will the FY 2102 cap be reached?  Based on the number of filings in the previous two (2) years, unless there is a dramatic economic turnaround in the U.S., a best guess would be sometime in February or March 2012. 

    Of course, the rate of cap subject filings over the last several years signifies that there is no real need for an H-1B cap in the first place. Outside forces, other than an arbitrary cap set by Congress years ago, now drive new H-1B usage, e.g. the fragile status of the U.S. economy and its direct effect on the high unemployment rate; increased scrutiny by USCIS regarding IT consulting companies who place H-1B workers at client sites (as a result of the "Neufeld Memo"); recent amendments to the H-1B regulations which have increased the fees for high users of the H-1B program; the limited period of authorized stay in such classification; the increased outsourcing of work from the United States to elsewhere abroad; increased opportunities to prosper in growing economies like India and China which have traditionally used large numbers of H-1B visas in the past; increased enforcement against those who do not abide by the rules of the H-1B program; and, of course, the increased availability of U.S. workers due to the steady 8 to 9% unemployment rate in the United States.

    As has been furthered by the authors of this blog on many occasions, as well as by many others far more erudite, the H-1B cap should be eliminated.  Of course, in today's political climate where Congress cannot even agree that passage of the Dream Act would be a sensible and compassionate form of relief for thousands of young foreign nationals of college age with nowhere to turn, it is more than wishful thinking that the H-1B cap will be eliminated anytime soon.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
  5. Need a new H-1B? Come and Get Some Now – Before it’s too late!

    by , 01-07-2011 at 06:26 AM (The H-1B Visa Blog by Siliato and Malyk)
    USCIS has advised that, as of December 31, 2010, the total number of new H-1B visas still available in the general H-1B pool for FY2011 is 7,250. This takes into account unused H-1B1 numbers reserved for natives of Singapore and Chile.  Given that (i) the 20,000 visa numbers allocated for those with U.S. Master's degree have been exhausted and (ii) the average general usage of new H-1B numbers per week during the last month, we anticipate that the H-1B cap for the current fiscal year may be reached by the end of January. 

    As such, employers who regularly make use of the H-1B program should capture (as soon as practicable) the remaining H-1B visa numbers before the quota is reached. Otherwise, such employers will be left to wait until October 1, 2011 before new H-1B visa numbers become available.

    Please note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. employer to another) are not subject to the annual H-1B cap and, therefore, will continue to be regularly accepted by USCIS.  Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities and other qualifying non-profit facilities may also be excluded from the numerical H-1B visa cap.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
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