Many employers and foreign nationals hoping to work in America have been happy that the supply of H-1B visas did not evaporate rapidly this fiscal year. That happiness may soon change.
The News Isn’t Good
The news from U.S. Citizenship and Immigration Services (USCIS) is that the supply of new H-1B visas for fiscal year 2012 will soon be a thing of the past. (Find link here.)
Contrary to popular belief there is not one but two caps on H-1B visas. The first cap of 65,000 is available to all foreign nationals who qualify for H-1B status and receive a petition. The second cap is a 20,000 allotment for foreign nationals who attain a masters degree or higher from a U.S. university.
U.S. Citizenship and Immigration Services began accepting applications for H-1Bs on April 1, 2011, even though individuals with approved petitions could not legally begin working in H-1B status until October 1st. Earlier this year, the 20,000 “masters exemption” was exhausted. Now, USCIS reports that as of November 14, 2011, 56,300 petitions that count against the 65,000 cap have been utilized. At the current pace, it is possible the remaining cap will be exhausted by the end of the 2011 calendar year.
The Only Practical Way to Hire
Lost in the debate over H-1B visas is a simple fact – an H-1B is generally the only practical way for an employer to hire a foreign-born professional to work long-term in the United States. Factoring in the initial stage of labor certification, the wait for an employment-based green card can range from a few years to even decades, depending on the category and country of origin. And the waits are longest for Indian nationals because of the per country limit.
Without the possibility for a skilled foreign national to obtain a new H-1B petition, the options will grow limited for both employers and potential employees. Hiring by universities and non-profit research institutes are exempt from the H-1B numerical limits, which presents one avenue of employment for a skilled foreign national. Another option is that an employer may decide to hire someone outside the country. After a year, if the individual possesses “specialized knowledge” or is a manager or an executive, it may be possible for that individual to transfer into the United States on an L-1 visa.
Another option for an employer is to hire the individual outside the United States and file a new H-1B petition in April 1, 2012, although the individual could not start working in the U.S. until October 1, 2012 (the beginning of the new fiscal year). In short, there are no good options. The closest to a “good” option is for an international student at a U.S. university to determine if he or she qualifies for Optional Practical Training (OPT), which would allow the student to stay in the United States and obtain training while working for an employer for up to a maximum of 29 months.
The Prospects for Legislation
Realistically, it is unlikely Congress will pass an expansion of the H-1B quota in 2011 or during the first half of 2012. Any legislation passed after that time would not help individuals in the short term who need to be hired in H-1B status to work legally in the United States. A new supply of H-1Bs would become available on October 1, 2012.
It is possible that a small expansion of H-1Bs or an expansion of the 20,000 “masters exemption” could be part of another piece of immigration legislation. Yet it is unlikely an expansion of H-1Bs would pass without at least some legislative debate over whether to include new restrictions on H-1B visas in such a bill. In the meantime, the best bet for employers and potential hires who require an H-1B visa is to get one while supplies last.