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A True Test Of The U.S. Lack Of Economic Recovery: The Continued Availability Of H-1B Numbers For Fiscal Year 2011 Post April 1st

by Wendy Castor Hess, Esq.

As the stock market hit 11,000 this week, optimistic mumbles of the recovery of the U.S. economy were heard throughout the business community. However, the stock market news was followed by announcements from several major companies that earnings for the last quarter were not as strong as hoped.

Are there any true predictors of whether our economy is on the road to health? Perhaps one way is to view the usage of H-1B numbers for the coming fiscal year.

Beginning April 1st, prospective H-1B employees urged their prospective employers to hurry and file H-1B petitions on their behalf on the first day possible, April 1st, with the hope of securing and locking in a precious H-1B number for the 2011 fiscal year, beginning on October 1st, 2010. As employers and immigration attorneys alike scurried to meet this deadline, many asked: is this rush really necessary? Since no one knew the answer, the internal reply was: absolutely-just in case USCIS is flooded with H-1B petitions.

After many late nights and much worrying, USCIS has indicated that all the rush and fuss was not necessary at all: As of April 9, USCIS had received only approximately 13,500 H-1B petitions counting toward the general non- degrees (against the advanced degree cap of 20,000). What information are we to take from this non-usage of the full H-1B cap during prime filing time?

Several messages. First, many of the companies who would have been eligible to file H-1B petitions are financial institutions which received TARP funds, thus making them ineligible to file H-1Bs. Second, many of the companies that have used (and often abused) the H-1B visa option are "job shops" whose off site, third party employment practices have been cracked down on by USCIS and DOL visits and/or whose business practices have been changed by the recent USCIS memo clarifying the definition of "employer" and imposing more stringent requirements on those companies that continually send their employees off site.

Finally and perhaps most importantly, the usage of H-1B visas is market driven. Most companies prefer not to have to dip into the muddied waters of immigration (to which much liability is attached) in order to secure their workforce: they prefer hiring U.S. citizens and Lawful Permanent Residents. It is only when this pool of qualified workers disappears that employers are willing to turn to foreign nationals to fill unfilled positions. Thus, rather than viewing the ups and downs of the stock market, a market that no one, including stock brokers, seems to understand, the litmus test of a recovering and recovered economy can be judged by the usage of H-1B visas. Given the April USCIS report on this visa's continued availability, the U.S. economy clearly has a long way to go before we can truly claim that, as in the Philadelphia based movie, "Trading Places": "Mortimer, we're back"!

About The Author

Wendy Castor Hess, Esq. is a partner in the Immigration law firm of Goldblum & Hess and has been practicing immigration law for over 30 years. She currently serves as a member of the AILA DOL Liaison committee and as co-chair of the AILA Philadelphia USCIS liaison committee. Primarily an employment based attorney whose practice is focused on representing employers, especially in the medical, pharmaceutical, IT and university communities, Wendy draws upon her experience as counsel to the Mexican Consulate in Philadelphia and as a weekly columnist for Al Dia newspaper to provide pragmatic advice to her corporate clients in the ever-changing landscape of business immigration. Wendy is listed in Best (Immigration) Lawyers in America for 2005, 2006, 2007, 2008, 2009 and 2010 as well as in Pennsylvania Superlawyers 2009 and 2010. She, like so many others, is anxious to see the U.S. make a swift comeback and our country restored to its former prosperity.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.