IMMIGRATION

Fewer H-1B petitions filed in 2009 ― should H-1B cap be eliminated?

Why would the U.S. government want to apply the brakes to our national economic engine? It's safe to say it wouldn't do so intentionally. But we now have strong evidence that the H-1B cap does exactly that, holding back employers when the economy is in high gear and serving no purpose at all when it slows.

The problem

This year, for the first time in many years, the U.S. Citizenship and Immigration Services (USCIS) didn't receive enough H-1B petitions on the first two filing days to exhaust the entire annual allotment of H-1B approvals. In fact, as of June 1, two months after the USCIS opened the application process for the 2010 H-1B allotment, there still were 20,000 approvals available. In past years, the volume of H-1B petitions received in the first two days forced the agency to conduct a lottery for petitions. After that, no more approvals were available for the year for employers subject to the annual H-1B cap.

H-1B status is available for international specialty occupation workers (i.e., professionals in occupations requiring at least a bachelor's degree or an equivalent combination of education and experience in a specific field). U.S. law imposes a cap of 85,000 H-1B approvals per year, of which 20,000 are set aside for positions requiring at least a master's degree. While most employers are subject to the cap, exemptions are available for colleges and universities, nonprofits associated with colleges and universities, and nonprofit or government research organizations.

In past years, the number of H-1B approvals available under the cap has been insufficient to meet U.S. employers' hiring needs. Applications can be filed starting April 1 for approvals under the H-1B cap for the next federal fiscal year, which begins October 1. In the recent past, the 65,000 approvals available for bachelor's degree positions have been taken up entirely by petitions filed on April 1 and 2. A few years back, the cap was temporarily increased to 165,000. Even then, the maximum was reached just a short time into the application cycle. In practical terms, H-1B approvals haven't been available for most employers in recent years.

Uncapping the cap

Business advocates argue that the H-1B cap serves no purpose other than hindering the business plans of U.S. employers struggling to meet their hiring needs. Proponents of the cap contend that without a limit on H1-B petitions, employers would hire internationals without regard to the resulting impact on the U.S. workforce. Until now, there has been no hard evidence to definitively resolve the debate.

But this year, the economy is slow. When the year started, the USCIS was prepared to receive more than 100,000 H-1B petitions on April 1 and 2, but the onslaught never came. With unemployment high, U.S. employers don't need to resort to as many international candidates to fill their hiring needs. As a result, they filed fewer H-1B petitions. On June 1, there still were about 20,000 H-1B approvals available for positions requiring at least a bachelor's degree or equivalent education and experience.

If you're having trouble recruiting and retaining U.S. workers in specialty occupations, you might want to consider sponsoring an international candidate for H-1B status this year. We don't know how long approvals will continue to be available, so if you're interested, you should file a petition as soon as possible.

Bottom line

In the meantime, we can only hope the H-1B cap might be eliminated for future years. The U.S. population has never completely supported the workforce needs of our growing economy. In fact, we have always looked to an immigrant workforce to feed our economy's often insatiable thirst for labor.

We know the economy will eventually rebound. When it does, employers will again find that the U.S. workforce can't support the needs of the market. When that time comes, wouldn't it be nice if you could obtain the H-1B approvals needed to support your business plans rather than competing with other employers for an arbitrary number of annual approvals? If this makes sense to you, contact your congressional representatives and express your opinion about the impact of the H-1B cap on U.S. employers.

Copyright 2009 M. Lee Smith Publishers LLC

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