April 1, 2008
Today is the first of five busy days at the Vermont Service Center. Located in the sleepy town of Saint Albans, VT, the service center is the primary federal office for filing most new H-1B Specialty Occupation Applications for non-citizen workers employed in the U.S. This year, the cap for H-1B visas will remain at the pre-1997 limit of 65,000 total work visas. Responding to an information technology boom, Congress increased the number of visas to 195,000 for the fiscal years 2001-2003 only.
The American Immigration Lawyers Association (AILA) expects more than 150,000 H-1B applications to be submitted. For the last five years, the skilled foreign worker cap has been exhausted before the fiscal year began. With only 58,200 of the FY2009 quota of 65,000 visas being available to most nationalities, fully qualified applicants face about a 30 percent chance of their applications being accepted for adjudication.
“Generally, the U.S. economy needs 160,000 to 170,000 skilled foreign workers at times of modest growth; that number jumps to about 200,000 in booming times. During the tech bust of 2002-2003, there were still 130,000 H-1B applications,” notes Robert Loughran, managing shareholder for Houston-based Tindall & Foster, P.C. and national liaison between AILA and the Vermont Service Center. “In today’s marketplace, leading companies are built by attracting top-notch talent from across the globe; this is especially true in technology, design work, programming, engineering and higher education.”
H-1B is the broadest non-immigrant visa category enabling United States employers to sponsor foreign workers in occupations requiring university degrees. Employers must prove that workers use advanced, specialized knowledge in one of many degreed areas, including architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology and the arts.
A March 3 survey report issued by the Society for Human Resource Management (SHRM), the world’s largest human resource management association, found that 25 percent of the 600 U.S.-based respondents recruit foreign nationals because of an inability to find qualified in-country candidates. Nearly two-thirds of SHRM members reported that they are just as likely to hire foreign nationals now as compared to two years ago.
Under current regulations, workers hired under an H-1B visa must earn a “prevailing” wage when compared to U.S.-born employees with similar credentials as determined by the Department of Labor. Employers are not allowed to charge-back the bulk of the filing fees and the wage must be high enough so that any allowable charge-backs do not push a H-1B applicant’s earnings below the market wage. In most cases, it costs employers thousands of dollars to hire foreign workers when competent candidates are not available.
A recent study by the National Foundation for American Policy (NFAP) evaluated U.S. Department of Labor H-1B visa filings and year-by-year job totals for 76 S&P 500 technology companies between 2001 and 2005. NFAP research concluded that for each H-1B visa requested by a corporation, overall American hires climbed an average of five employees. In smaller companies, the group estimated that seven new American employees were hired for every H-1B application submitted. The study also noted that insufficient numbers of visas are forcing many companies to send would-be U.S. jobs offshore.
“The H-1B visa cap was set by 1990 legislation, before the shift to an information-based economy and the longest period of ‘full’ employment. Elected officials have hesitated to address the quota system, technical U.S. jobs have moved offshore and corresponding well-paying support positions have been lost, perhaps indefinitely,” said Loughran. “The existing system of skilled visa designations is complicated and difficult to re-tool; the only readily available solution to keep domestic jobs is to raise the H-1B cap.”
Source: Tindall & Foster, P.C.
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