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Expanding the Annual Cap for H-1B Visas

H-1B visas allow sponsoring employers to hire skilled foreign nationals on a temporary basis. These positions have a tendency to arise within the tech industry; in 2012, 70% of requests by employers for H-1B workers were for computer-related occupations.[1] For years, large tech companies have asked Congress to increase the H-1B visa cap, saying they can’t find enough skilled workers in the U.S. to fill their positions. When it comes to H-1B visas, the demand for H-1B visas has often been greater than the government’s supply.

This year, U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013.[2] Overall, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.[3] Each time USCIS reaches the annual cap, a computer-generated random selection process is used to select a sufficient number of petitions needed to meet the 65,000 allocated for the general category and 20,000 for the advanced degree exemption category. For those unlucky petitions not randomly selected, USCIS rejects and returns the petition with filing fees. This process has been frustrating for many prospective employers who end up with unfilled positions, and has disappointed many educated foreign nationals who are forced to take their skills elsewhere.

In addition to benefitting prospective employers and foreign national workers, the H-1B visa program brings about economic growth and creates educational scholarships through associated fees. From 2001 to 2010, each additional 100 approved H-1B workers was associated with an additional 183 jobs among U.S. natives.[4] As for our nation’s students, the National Foundation for American Policy estimates that a total of $4 billion in H-1B education fund fees have been paid since 1999, which has lead to the creation of 63,800 scholarships for U.S. students.[5]

Legislation addressing the need for an increase in the annual cap has been introduced in both the House and the Senate over the past year.  One such piece of legislation, the “Immigration Innovation (or I-Squared Act) Act of 2013” introduced to the Senate in January of 2013, proposes to replace the hard cap with a market based “H-1B escalator” that automatically adjusts the number of available visas depending on demand.[6] This would mean that instead of a hard H-1B visa cap of 65,000 per year, the newly proposed cap of 115,000 would increase by an additional 20,000 visas if the cap were met within the first 45 days.[7] If it takes longer to reach the cap, the number of additional visas is scaled down- 15,000 more visas are released if the cap is hit on the 60th day, and so on. This type of legislation would give prospective employers the ability to hire according to their needs without undercutting U.S. workers by artificially deflating wage levels.

Gary Shapiro, President and CEO of the Consumer Electronics Association, accurately describes the importance of expanding the H-1B cap; “For America to remain the world’s leading innovator, we must embrace immigration policy reforms that allow the United States to remain a magnet for the best and brightest to work and build their businesses, create new jobs and contribute to the overall success of our economy.”[8]

[1] “Immigration Facts: Temporary Foreign Workers” Jill H. Wilson, Brookings Institution: June 18, 2013, available here.

[2] “H-1B Fiscal Year (FY) 2014 Cap Season” U.S. Citizenship and Immigration Services: April 15, 2013, available here.

[3] Id.

[4] Madeline Zavodny, Immigration and American Jobs, American Enterprise Institute and the Partnership for a New American Economy, December 2011.

[5] FY 2013 National Science Foundation Budget Request to Congress, EHR – 19-20.

[6] Immigration Innovation (I-Squared) Act of 2013, available here.

[7] Id.

[8] “Bring in Foreign Talent to Create US Jobs” Gary Shapiro, Huffington Post: May 23, 2013.

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