USCIS received an overwhelmingly huge number of petitions for the FY 2008 H-1B quota on April 2, and April 3, 2007, reaching the H-1B cap the first day when petitions can be submitted. In total, USCIS received about 133,000 unique of pieces of mail containing H-1B petitions. However, the cap is only 65,000. More than half of the petitions were returned. In addition, on April 30, it reached the FY 2008 H-1B cap for “foreign workers who have earned a master’s degree or higher from a U.S. institution of higher education” to meet the congressionally mandated exemption limit of 20,000. Now, there are no more H-1B quotas available for qualifying aliens for the FY 2008. H-1B quota has become a crisis for many aliens who want to work in the US. This crisis has brought full attention in the latest immigration reform debate.

Introduction

The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Currently, H-1B non immigration workers comprise a low percentage of the entire US workforce: less than one-tenth of one percent of the U.S. workforce of more than 127 million people.

H-1B Cap and the Crisis

H-1B cap was first introduced in Immigration Act of 1990 (IMMACT). For the first time the Congress imposed an annual “cap” of 65,000 H-1B visas for each fiscal year (FY), beginning on October 1 in the previous calendar year and ending on September 30 in the current calendar year. The H-1B cap took effect on October 1, 1991, at the start of FY 1992. The cap was first reached in FY 1997 and FY 1998. To meet the US employers’ increasing hiring needs, in October of 1998, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) was enacted and temporarily increased the H-1B cap for FY 1999 and FY 2000 to 115,000. The American Competitiveness in the 21st Century Act (“AC21”) was signed into law in October 2000 which increased H-1B numbers to 195,000 for fiscal years 2001, 2002 and 2003. Thus, during these years, the fear for running out of H-1B quota did not materialize. After the H-1B cap was reduced to 65,000 in FY 2004, the “cap terror” started to take tolls on H-1B petitioners (US employers) and prospective beneficiaries (alien workers). In FY 2004, the cap was reached on February 17, 2004 (less than 5 months into the fiscal year). For FY 2005, USCIS announced on October 1, 2004, the first day of FY 2005, that the H-1B cap was reached based on petitions that had been filed between April 1, 2004 and October 1, 2004. The cap for FY 2006 was met on August 10, 2005(More than one month prior to the affected fiscal year). For FY 2007, the cap was run out on Aril 2, 2006, the first of application. This H-1B cap tragic drama reached its height in 2007. This marked the fifth consecutive year that this arbitrary numerical limit, set more than a decade ago, has been triggered before the end of the fiscal year.

The above H-1B cap is what we refer to as “standard cap.” In addition to “standard cap” as directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees will be exempt from any fiscal year cap on available H-1B visas. Comparing to “standard cap,” we call this category “advanced degree cap,” which actually increase the “standard cap” by another 20,000. For FY 2008, “advanced degree cap” was filled up quickly too, as of April 30, within one month USCIS started accepting petitions for FY 2008, H1-B advanced degree cap was reached.

The Debates on Pros and Cons of H-1B Visas
H-1B Professionals have been benefiting the US economy in the following three perspectives, but not limited to:
First, the H-1B programs are vital tools necessary to keep the U.S. economy competitive. Lobbying for an increase in the number of H-1B visas, Microsoft chief Bill Gates has commented that “The high skilled immigration issue is by far the number one thing” on the Washington agenda of Microsoft and for the electronics industry generally and “this is gigantic for us.” Employers hire H-1B professionals to obtain cutting edge technical skills or expertise that is relatively unique and not readily found in the U.S. Roughly half of the students graduating with advanced degrees from U.S. universities in math and sciences are foreign nationals. If U.S. employers cannot hire these professionals with cutting edge knowledge and research experience, they will go abroad and work for competitors of the United States, undermining our preeminence in a variety of scientific and technical fields—areas vital to the prosperity and national security of the United States.
Second, there is a severe shortage of highly skilled high tech workers in the U.S. today. Demand for specialized technical skills has long exceeded the supply of native-born workers with advanced degrees, and scientists and engineers from other countries fill this gap. H-1B professionals fill positions when there is a temporary shortage of workers with specific skills in a specific field, thus allowing employers to respond quickly to shifts in the labor market. The top human resource-professionals from Microsoft, Sun Microsystems, Texas Instruments and other members of the American Business for Legal Immigration Coalition (ABLI) testified before Congress about the serious shortage of skilled high tech workers, calling it the most significant issue affecting U.S. manufacturers’ ability to grow and compete.
Third, employers often need H-1B professionals to provide special expertise in overseas economic trends and related issues, enabling U.S. businesses to prosper on a global level and allowing the U.S. to retain its competitive edge.
However, fears that H-1B workers cause unemployment and depress wages are unfounded.
First, employers must protect U.S. workers when they hire H-1B professionals. This is evident from the fact that employers must pay a $1,500 training fee for each H-1B petition they file in addition to the other fees associated with the H-1B visa program. This fee goes to scholarship and other training programs to help train Americans in critical industries.
Second, H-1B won’t depress wage of US workers, instead it safeguards wages and working conditions. Employers must pay each H-1B professional a wage that is the higher of either the typical wage in the region for that type of work (“prevailing wage”), or what the employer actually pays existing employees with similar experience and duties. Employers cannot use H-1B professionals to break a strike and must notify their U.S. workforce when hiring an H-1B professional. Employers cannot make the H-1Bs work under conditions different from their U.S. counterparts, including hours, shifts and benefits.

Third, recruitment of H-1B workers won’t deprive jobs of U.S. workers. Employers who use a lot of H-1B visas first must try to find U.S. workers before they can hire an H-1B professional. They also must attest that they are not using an H-1B visa if they have laid-off or displaced a similarly situated U.S. worker. H-1B workers create jobs for Americans by enabling the creation of new products and spurring innovation. High-tech industry executives estimate that a new H-1B engineer will typically create demand for additional 3–5 American workers.

In sum, the H-1B programs are vital tools necessary to keep the U.S. economy competitive in the world market and to keep jobs in America. Far from harming U.S. workers and the U.S. economy, highly educated foreign professionals benefit our country by allowing U.S. employers to develop new products, undertake groundbreaking research, implement new projects, expand operations, create additional new jobs, and compete in the global marketplace. As President Bush has remarked, if these professionals are not permitted to come to the U.S. to share their expertise, they will go to other countries and benefit companies abroad instead. The end result will be American jobs lost and American projects losing out to foreign competition, with devastating long-term consequences for the U.S. economy.

The STRIVE Act

On March 22, 2007, Luis Gutiérrez (D-IL) and Jeff Flake (R-AZ) introduced the Security Through Regularized Immigration and a Vibrant Economy Act to the House of Representatives. The STRIVE Act, which aims at comprehensive reform, proposes to increase the annual H-1B cap from 65,000 to 115,000.

Although it is still early to predict the success of the STRIVE Act or other immigration reform legislation, momentum has been building in both houses of Congress over the last several weeks.

Voice out Your Opinions to Legislators

The H-1B cap shortage has caused great problems for immigrants. The only way to solve this dilemma is to provide relief from restrictive caps. The proposal regarding the H-1B visa numbers in the STRIVE Act may fix this problem. To support the STRIVE Act or other immigration bill that might be proposed, please contact your Congressman.

You may draft your own letter to express your comments and concerns to the Senators and Congressmen in your district by using our online advocacy tool below. Based on your zip code, our system will automatically find the correct Senators and Congressmen for you, and send your email to them, so that you can make your voice heard.

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