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Bloggings On The H-1B Visa

by Anthony F. Siliato and Scott R. Malyk



Perhaps this is old news, but the U.S. appears to be losing its edge in attracting and retaining not only the best and the brightest, but even those who possess a minimum of an undergraduate degree.  According to a recent study by the Organization for Economic Cooperation and Development (“OECD”) at present, 25% of the 255 million people worldwide with a bachelor's degree or higher currently reside in the United States. But that share is expected to shrink in the coming years, as developing countries such as Korea and China push more and more of their citizens into college. China already accounts for 12% of the world's college-educated working population and, among young workers aged 25-35, China accounts for 18% of the college-educated. 

For reasons unclear to the authors of this blog (other than that the United States charges more in tuition than any other country in the survey), the United States is showing no growth in the share of young people who go to college compared to a generation ago.  According to the OECD study’s author, the United States is quite alone in that young people entering the labor market are not better educated than people leaving the labor market. Indeed, as the OECD writes, “the expansion of tertiary education in many countries has narrowed the advantage of the United States both in overall levels of attainment and in the sheer number of individuals with tertiary education.”

While a meaningful reduction in U.S. college tuition across the board is, of course, not in the cards, there are other avenues available to attract and retain the college educated.  A step in the right direction would be to eliminate altogether the H-1B cap that has been arbitrarily set by Congress.  The U.S. caps the H-1B “specialty occupation” visa at 85,000 per year. As of September 9th, USCIS advised that it has received 32,200 regular cap cases and 16,700 against the U.S. advanced degree cap. Based on current projections (with usage about the same as that of the last fiscal year), this year’s limit is likely to be exhausted in January 2012—which means that, after such date, employers will be unable to hire new H-1B workers who are subject to the cap until October 1, 2012.

Another option would be to implement a plan proposed by Mitt Romney—one in which foreign nationals with a foreign master’s degree in science, engineering or math (rather than an advanced U.S. degree) would not only be exempt from the H-1B cap, but also be eligible for a green card.  The latter green card plan is one that has been proposed previously by lawmakers on both sides of the aisle without success.

In today’s economic environment, no doubt it may seem counterintuitive to some to implement any plan that enables more foreign nationals to work either temporarily or permanently in the U.S.  A futuristic view, however, of the continued shrinking of our college-educated population certainly does not seem to be a good alternative.



About The Author

Anthony F. Siliato the founder of Meyner and Landis LLP’s Immigration Law Group, has been practicing Immigration Law for more than 25 years. He is chiefly responsible for the firm's business and corporate-related immigration matters which involve the recruitment, hiring, transfer and retention of international personnel worldwide. A past chair of the New Jersey Chapter of the American Immigration Lawyers Association (AILA), Mr. Siliato remains an active member of AILA, serving as a mentor and frequent speaker on employment-related immigration matters. Mr. Siliato currently serves as a member of the Advisory Board of the International Institute of New Jersey, a non-profit organization whose mission statement is to help immigrants and refugees build full and productive lives in the United States and work to ensure their fair and equitable treatment. He was selected as a Super Lawyer in the area of Immigration Law by New Jersey Monthly Magazine (2008, 2009). You may reach Mr. Siliato at

Scott R. Malyk is an associate with Meyner and Landis LLP’s Immigration Law Group, specializing in all aspects of corporate and business-related immigration law. He works with businesses of all sizes, from Fortune 500 companies to international startups. Mr. Malyk also represents self-petitioning foreign nationals seeking investment opportunities in the U.S., as well as those seeking National Interest Waiver approval. Additionally, Mr. Malyk represents outstanding scientific researchers, medical professionals, attorneys, foreign legal consultants and a variety of others with extraordinary abilities in the sciences, arts, education, business, and athletics, who wish to come to the U.S. to work in their area of expertise. Such efforts include obtaining temporary and permanent visas for artists, fashion models, musicians, chefs, professional athletes and other entertainers. You may reach Mr. Malyk at

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