WORK VISA SHORTAGES IN US CONTINUE TO PERSIST

Despite the slowdown in the US economy, the major temporary and permanent visa categories for high skilled workers remains serious oversubscribed and backlogged.

The H-1B Crisis

The H-1B is the major visa temporary visa category available in the US for professional workers. It is available to those with bachelors degrees filling positions with employer that require degrees. In 1990, Congress for the first time set a limit of 65,000 on the number of H-1B visa and within a few years it was becoming clear that the annual quota was inadequate.

Begin in the late 1990s, Congress temporarily raised the annual H-1B quota. Those temporary increases expired in 2003 and the annual cap returned to 65,000 from 190,000. Congress did establish several important exemption categories beginning in the late 1990s including employees of colleges and universities, certain physicians working in underserved areas and employees of non-profit research institutions.

For the last several years, Congress has provided for a bonus quota of 20,000 extra H-1Bs for graduates of US masters and higher degree programs.

For the past two years, demand for H-1Bs has been so strong that the entire annual allotment has been drawn immediately after the numbers became available. Visas can be claimed up to 180 days before the beginning of a the government fiscal year that annually starts on October 1^st. That means applications must be filed on April 1^st to have a reasonable chance of being selected. In 2007, US Citizenship and Immigration Services received more than twice as many applications on the first day available as slots available under the basic 65,000 cap. In 2008, a similar number of applications were received on the first day and the bonus pool of 20,000 visas for advanced degree professionals was used up within a week. In short, the H-1B process has become a lottery.

H-2B problems

A temporary visa category available for short term and seasonal workers, the H-2B, has similar problems as the H-1B. The H-2B cap is set at 66,000 and can be used for any type of worker whether professional, skilled or unskilled. Up until September 30, 2007, returning seasonal workers were not counted against the annual 66,000 limit if they had previously been counted in the annual quota. Congress has not extended that provision which has led to the H-2B quota being used up rapidly. While demand is not quite as strong as in the H-1B category, the H-2B quota is now only available for brief periods of time during the fiscal year.

Green card backlogs

The situation for employment-based permanent residency visas (“green cards”) is no better. Waits in the popular EB-3 green card category for skilled and professional workers are now estimated at five to seven years. The wait in the EB-2 category for workers with masters degrees or higher is not backlogged for most workers. However, nationals of China and India are facing additional waits of two to four years. Why? Because US immigration law limits admissions in the various green card categories to no more than 7% from any one country. Given the large populations of Indian and Chinese highly educated professionals seeking positions in the US, this backlog is hardly a surprise. The waits will likely only grow as the additional H-1B workers who benefited from larger quotas earlier in the decade seek to convert to permanent residency.

Responses

Followers of US politics know that immigration has been a very heated issue for the past few years. Attempts to pass major immigration reform legislation have failed and members of Congress have been extremely reticent to push forward any immigration legislation, whether controversial or not. Furthermore, some members of Congress who are pro-immigration have made the strategic choice to block small, pro-immigration bills – such as bills lifting H-1B and green card caps or restoring the H-2B returning worker provision – in order to force reconsider of a massive comprehensive immigration reform package. So while there is general support in Congress for addressing the lack of non-immigrant and immigrant visas for needed workers, political considerations are getting in the way.

The odds are increasing that nothing will happen until after the election. Democrat Barack Obama and Republican John McCain are each considered to be pro-immigration and are likely to support measures to increase visa availability. The problem will likely be in Congress where a small minority can block legislation. Democrats are generally viewed as the more pro-immigration party and there is optimism that if they increase their numbers substantially (as is widely expected), this will bode well for addressing immigration in the next session of Congress.

In the mean time, there are alternative strategies that companies and workers can consider.

First, there are other visa categories that frequently are available, some of which have no numerical limits. The L-1 visa is available for employers that first employ key workers abroad with the company for a year prior to seeking entry. The J-1 visa for trainees and interns is available for up to 18 months for junior level workers seeking to gain experience in their fields. Foreign-owned corporations with qualifying commercial treaties with the US can sometimes bring in key employees.

Second, President Bush recently stepped in as well to with a new rule that allows students in the US in certain science, technology, engineering and mathematics (STEM) fields to work for up to 27 months after they complete their degrees. The previous rule limited such work to 12 months. Aside from having to work in a qualifying field, the employer must participate in the controversial new E-Verify electronic employment verification system which documents that workers are authorized to work in the United States. E-Verify is largely targeted at employers hiring illegally present lesser skilled workers.

Finally, for advance degree workers who qualify in the EB-2 green card category and who are not from countries with per country limits (currently just India and China), bypassing the non-immigrant visa and going directly for the green card may be a possibility. An employer would need to be prepared to wait a number of months – likely one to two years – before the worker could enter with permanent residency.

Conclusion

Ultimately, the US Congress will need to step in if the US is to remain an attractive location for top global talent. More visas will need to be made available both at the temporary level and at the permanent level. Unfortunately, the odds of this happening in 2008 are slim and it may be well in to 2009 before there is any progress to report.

Gregory Siskind

Memphis

800-343-4890 / 901-682-6455

gsiskind@visalaw.com