H-1B Availability

By Attorneys Robert L. Reeves and Joseph I. Elias

As of this writing, May 20, 2009, the United States Citizenship and Immigration Services (USCIS) reports that H-1B visa numbers are still available for October 1, 2009 start dates.  The USCIS has received approximately 45,500 H-1B petitions counting toward the 65,000 cap.  It is continuing to accept petitions subject to the general cap as of this date.  In the last few years, available visa numbers were exhausted in the first few days they became available.   This employment-based visa category has been one of America’s greatest strengths allowing for increased employment opportunities for all Americans, and furthering our national interest through the creativity and knowledge of H-1B professionals.

The H-1B visa status is a temporary employment status for occupations that require a specialized bachelor’s degree for entry into the field.  Classic examples of H-1B occupations include engineers, computer scientists, teachers, accountants, architects and physicians.  While the H-1B category has provided many benefits to America it is currently under attack in Congress.  Senators Durbin and Grassley have introduced a draconian bill with provisions that would severely limit the ability of US employers to petition foreign workers in H-1B status.  These include Department of Labor oversight provisions similar to the labor certification process.  This virtually guarantees backlog and processing delays of several years before an H-1B worker will be able to come on board with an employer. 

This alarming movement in Congress is being challenged by advocacy groups, lawyers and economists with hard empirical data on the benefits to the US economy, workforce and society these tax-paying H-1B workers bring to the US.  The troubled US economy and rising unemployment is a major impetus behind the push to restrict and hobble the H-1B category.  H-1B opponents are asking how can we take away jobs from Americans and give them to foreigners, especially our unemployed.  Proponents of H-1B are working hard to educate the public and Congress on how the facts, figures, and numbers show H-1Bs do not take away jobs. 

If unemployment continues to rise, members of Congress are going to be politically hard pressed to explain why they support an immigration program that has the appearance of taking jobs away from US workers.  Emotions can very easily overcome the facts in the decision making process.    Many of us are working towards not allowing it to come to this. 

But, there is a chance the H-1B category will be changed.   Just this year we saw restrictions placed on US companies that accept Troubled Asset Relief Program (TARP) and bailout funds from using the H-1B program.  Congress is already lumping H-1B employees in the same group as executive who received massive bonuses while their companies took on massive losses.  Is a H-1B software engineer working at a troubled bank to develop and improve  computer systems to safeguard customers’ private data really a villain?  Is the decision to employ H-1B professionals the reason behind the global financial mess?  Hardly.

Potential H-1B workers and employers should take advantage of the remaining H-1B visa numbers while there is still a chance.  This availability should not be squandered because next year the H-1B category, as we know it today, may no longer be available.  It may transform into a bureaucratic and overly burdensome process that is not viable for employers.  An employer today may be able to wait until October for a talented foreign accountant to start working.  That same employer will most likely not be able to wait two years before that talented accountant will be allowed to start working.