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The End Of The High-Flying H-1B - 30 Days Later

by Alice Yardum-Hunter

Now that it's November, and the big waves of H-1Bs have turned into a low tide, where do we stand today? Several rules have changed, most important of which is the number of H-1Bs available the 2004 fiscal year, which runs from October 1, 2003 to September 30, 2004. In addition, on October 1, rules about H-1B dependent employers, Department of Labor's expanded investigatory authority, and the $1,000.00 filing fee for training U.S. workers and enforcement of the H-1B program were eliminated.

On October 22, 2003, the Department of Homeland Security released statistics on H-1B usage for the past four years. Peaking in 2001, some 330,000 H-1s (initial petitions, including those not subject to the cap and extensions) were approved. During each of the past two years, less than half of those figures, approximately 79,000 approvals counted against the cap. The total number of H-1B visa holders in the U.S. is about 700,000. The number is this high as H-1B aliens are permitted to remain in the U.S. for a total of six years, generally.

The total number of new H-1s available decreased from 195,000 to 65,000 annually on October 1. Given the tension between the need mainly for highly technical engineers and computer professionals, and relatively high US unemployment, the notion of raising the cap legislatively again soon is daunting. To get around this, the Senate Judiciary Committee, headed by Orrin Hatch (R-Utah) is considering adding to categories of aliens exempt from the H-1 cap. Those currently exempt include most H-1Bs who continue in this status and initial H-1B who work for institutions of higher learning, certain research and governmental entities. Intel Corporation, in particular is pushing for an exemption for foreign graduates in technical fields, which are the bulk of H-1B visa holders today. Nearly half of all college students in U.S. technical programs are foreign students. To sweeten the deal, there is also discussion of adding back the $1,000.00 fee to train US workers and to enforce the H-1B program that sunsetted on October 1.

Multinational corporations, hi-tech companies, trade organizations and immigration lawyers argue that without an H-1B program that responds to the needs of our economy, we will lose our competitive edge globally. Despite the obstacles posed by labor unions in the U.S., these groups are attempting to raise the cap to at least 100,000 annually.

There is good reason to again increase the cap early rather than to wait for another crisis like the one that precipitated the progressive raising of the cap. In the late 1990s the tech boom was ballooning, and the need for H-1s far exceeded the numbers available. This left aliens and their prospective U.S. employers in limbo for many months. When the numbers are exhausted for the fiscal year, it is necessary to wait until the following October 1 for visa issuance or status change. As a result, many aliens sat unproductive while their H-1 changes of status were pending, or they became visitors or foreign students in other educational programs. Those who were abroad had to simply wait before entering the U.S. to work. But as with all lumbering bureaucracies, the U.S. Congress did not act when the need was most acute. They waited and increased the numbers at a point when they were not needed in such great numbers. Now that the economy is picking up again, we could easily find ourselves in the same position. Efforts to avoid this happening again should be addressed. The antidote is for Congress to act more quickly this time.

Far more than most people realize, U.S. Citizenship and Immigration Services (CIS), formerly the Immigration and Naturalization Service (INS) received 231,000 H-1Bs for both initial and continuing employment in 2003. Of those, 108,000 were for initial H-1 employment. At the end of the fiscal year, there were approximately 22,000 petitions still pending. Special rules allocate 7,000 visas to Chile and Singapore under free trade agreements. All those petitions will count against lower 65,000 2004 cap, leaving only about 35,000 initial H-1s this fiscal year. Clearly, even compared to the lowest figures in recent times, new H-1Bs will run out before the end of the fiscal year, possibly before April.

The number of received applications was up in 2003 from the year before by 15,000 applications. 2002 saw the lowest total number of H-1Bs received by the Service in the past four years, not surprising given recent past downward economic history. The highest number filed was in 2001, but the increase in total filings from 2002 to 2003 was up about to 7%. This is upward bounce, coincidentally reflects the same government percentage as the growth rate of the overall economy in the third quarter of 2003.

As attorneys, we must assume the cap will be hit quickly. As clients, you must move on your H-1 opportunities as soon as they present themselves. We must avail ourselves of premium processing, and pay a filing fee of $1,000.00 beyond the normal $130.00 filing fee for initial H-1Bs. This isn't a big shift as we were already paying this amount just for normal processing until October 1 came because of the training and enforcement fee that ended. Before then, the filing fee with premium processing was $2,130.00, sometimes in excess of the attorney fee. It is a sobering thought that the U.S. government adjudicator's decision has more value than the tremendous work of highly educated attorneys in the same process. That aside, we get more bang for our buck with premium processing today, where for $1,000.00 less than a month ago, we can have a response from CIS within 15 days.

At the same time as all this, the CIS is issuing Requests for Evidence (RFE) in many H-1B cases. Requests for Evidence are just that: after filing the case, the government wants more information and documentation on issues they specify. These RFEs are more prevalent today as a result of greater overall immigration scrutiny that has developed beginning with various measures against all kinds of aliens, and U.S. citizens after 9/11. The RFE phenomenon is relatively new though, and has grown over the past few months. It is necessary to respond to RFEs quickly too, because numbers are not subtracted from the cap until they are approved, and with time fleeting, cases filed later in time could take precedence of those filed earlier. Cases are put at the end of the queue when received back at CIS. Since 84 days are available to respond to an RFE, the more time you take to respond, the closer your case comes to hitting the cap. The RFEs being issued are onerous, maybe even venomous. One official of the California Service Center actually stated at a meeting of the American Immigration Lawyers Association in October, that they are issuing RFEs that, "You will not be able to respond to".

What does "to train US workers and to enforce the H-1B program's" all mean? If you intend to apply for an H-1B, do so quickly and thoroughly in anticipation of an RFE, and if it is an initial H-1, pay the premium processing fee. If your H-1 is not an initial H, the premium processing is likely not necessary as H-1s are given an automatic extension of 240 days employment authorization (approximately 8 months) after the date of expiration of authorized stay when a timely extension is filed. If after six months, the H-1 extension is not adjudicated, a request for premium processing should be quickly considered, and filed. The six month suggested time is recommended to allow time to respond in the event of an RFE, which may be issued even to H-1 aliens who have been previously approved for
H-1B status.

This also means providing far more initial evidence. There are two common reasons stated in RFEs: that the position requires a minimum of a bachelor's degree to perform, and that the alien holds a minimum of a bachelor's or equivalent in education or experience. Other issues that require more beefed up evidence include the temporariness of the stay and the financial wherewithal of the employer.

We are in unsafe waters with H-1B processing. Tread very carefully.

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