H-1B visa logjam leaves employers and their clients stuck in limbo

Kimberly Atkins, The Daily Record Newswire

As lawmakers prepare to debate immigration reform, employment lawyers are hoping for a solution to the persistent bottleneck in the visa program for highly skilled workers that they say hurts their clients, particularly small businesses and startups seeking the talent they need to survive.

“It’s devastating for businesses,” said Deborah J. Notkin, a partner at Barst Mukamal & Kleiner LLP in New York.

Companies use the H-1B program to employ foreign workers to fill positions that require specialized training or expertise, such as scientists, engineers and computer programmers. But U.S. Citizenship and Immigration Services caps the annual number of H-1B visas at 65,000, with an additional 20,000 visas granted under a special program for applicants who hold master’s degrees or doctorates.

The cap on H-1B visa applications for fiscal 2014 was reached in less than 24 hours — the fastest rate in five years. A lottery was conducted among the roughly 124,000 petitions received, meaning that many employers that have recruited specific candidates or groomed students through internship programs for specialized positions won’t be able to hire their candidates of choice. That leaves employers in a jam, and ultimately hurts the country’s competitiveness in highly technical fields.

“In our American universities, 20 percent to 50 percent of graduates of some of the [highly technical] programs are here on student visas,” said William A. Stock, a partner in the Philadelphia office of Klasko, Rulon, Stock & Seltzer LLP and treasurer of the American Immigration Lawyers Association. “We have a great education system in the United States that attracts people from all over the world. Telling them that they have to leave and work for companies that compete with U.S. companies makes no sense.”

The burden is disproportionately high on small businesses in innovative fields. Unlike behemoths such as Microsoft and Apple, which have the ability to outsource or send requested H-1B applicants to foreign offices of their companies, small firms are often left without many options.

“I represent a number of small startups, and those are often very entrepreneurial,” said Ian R. Macdonald, a shareholder in the Atlanta office of Littler Mendelson PC where he co-chairs the Global Mobility and Immigration Practice Group. “They generally need to find the highly skilled talent that allows them to go to the market with ideas as quickly as possible. Their need to find the exact employees who fill their need is greater than that of bigger companies, which have the resources and ability to come up with other options.”

Competing legislative plans
The overload in H-1B applications came on the eve of the debate over immigration reform on the House and Senate floors. While the focus has largely been on the biggest components of the comprehensive immigration package being carved out by lawmakers — determining how to handle the millions of immigrants already living in the country without authorization, and securing border points of entry — business groups have been lobbying lawmakers to also fix the H-1B program which, they say, ties the hands of industry.

Those groups, including many firms in the tech community, back the Immigration Innovation Act of 2013 (S. 169). That measure, known as the “I-Squared” Act and introduced by Sens. Orrin Hatch, R-Utah, Amy Klobuchar, D-Minn., Marco Rubio, R-Fla., and Chris Koons, D-Del., would raise the annual H-1B cap from 65,000 to 115,000, with the possibility of reaching 300,000.

But the proposal is not without controversy. Organized labor groups and some business organizations have criticized the plan, saying it would incentivize companies to seek foreign workers instead of American applicants. A competing bill introduced by Sen. Chuck Grassley, R-Iowa, the H-1B and L-1 Visa Reform Act of 2013 (S. 600), would require companies to demonstrate that they made a good-faith effort to hire Americans first, require H-1B employers to list available positions on a Department of Labor-sponsored website for a period of 30 days prior to seeking a foreign applicant, prohibit employers from advertising only to H-1B visa holders, and increase the Labor Department’s ability to conduct random company audits.
But employment lawyers say their clients have a demand for highly skilled workers that can’t be met with Americans alone.

“This really is a demand-based thing,” Stock said. “The unemployment rate among American STEM [science, technology, engineering and mathematics] is lower than among any other group of folks. Consider the economists’ point of view: Which is better, having H-1B workers coming into Silicon Valley, or having that work be done in Bangalore or Shanghai or Moscow?”

Notkin said many of her small business clients are “waiting with bated breath” for an opportunity to hire skilled talent.

“Some of these small employers are immigrants themselves who are very entrepreneurial, or are incubators that have tremendous potential in a range of industries from health care to energy sources to management,” she said.

Search for solutions
Attorneys said there are a number of reforms to the H-1B program they and their clients hope will emerge from immigration reform negotiations in Washington, including:

• Measures to increase the pool of qualified STEM workers from the United States and abroad, including raising the annual cap on H-1B visas as well as increasing funding to programs designed to encourage American  students to pursue STEM degrees;

• Increasing compliance with existing rules governing employment-based visas, including the prohibition against filing multiple or duplicative petitions for the same H-1B worker, to ensure a more fair and orderly distribution of available H-1Bs;

• Making the H-1B program more transparent so that it is easier to study hiring demands and address inefficiencies. “The limit of 65,000 was set in the 1990s [but] that was before the Internet revolution,” Stock said. Implementing procedures to measure employers’ actual demand and track where H-1B holders are placed would help give the government data to better understand how the program is working on the ground and make necessary adjustments; and

• Cutting red tape that can often leave employers and foreign national workers who are lucky enough to win the visa lottery waiting for months to receive authorization. “H-1B has to be fast,” Macdonald said. “Companies have to be able to hire workers quickly to be effective.”

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