Early Season H-1B Musings

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

Comments

[Jacksonville Web Design]

Discussing of guidelines and guidelines - What are your ideas regarding removing the Existing Salary suggestions and enabling the free market to determine the income of H-1B charge beneficiaries?

[Navruz]

Too funny! I think some cliedrhn coaches are a bit lacking in patience. Those little kids need very elementary instructions. They don't understand the "jargon"

[H1B Visa attorney]

US Citizenship and Immigration Services (USCIS) announced last week that they continued to accept H1B non immigrant petitions subject to the Fiscal Year 2011
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[IT Services Seattle]

This is actually not the case with H-1B. No employer must prove that it cannot find a U.S. worker to get an H-1B. The closest thing is certain employers must recruit under the vague standard of "good faith". However, there is no enforcement of this provision whatsoever.

[Vincenzo]

Speaking of regulations and rules - What are your thoughts regarding eliminating the Prevailing Wage guidelines and allowing the free market to dictate the wages of H-1B visa beneficiaries? Also, what are your thoughts regarding the visa law's requirement that when an H-1B visa beneficiary changes employers, his Green Card processing becomes invalidated and needs to start from square one again?