Remind me why we need Immigration Reform?
The dysfunctional state of our immigration system was highlighted recently in the mad dash to the post office to file papers with the federal government. No, I am not talking about the annual ritual of filing income-tax returns on April 15; this is a more recent development that now takes place, appropriately, each April 1st.
To understand what takes place each April 1st, you must first understand a little about our immigration system.
Our federal government is properly tasked with the responsibility of maintaining our safety and economic security by controlling the entry of foreign-born persons into the U.S. The mechanism which provides the controlled entry of foreign-born persons is known as a ‘visa’. Although not everyone needs a visa to get into the U.S., (for example, persons from certain European countries wishing simply to visit the U.S. on vacation do not need a visa), if a foreign-born person wants to come to the U.S. temporarily to work, he or she will need a visa.
One of the more common visas for this purpose is known as an ‘H-1B visa’. This type of visa is set aside for persons in ‘specialty’ occupations such as engineers, physicians, software technicians, professors and computer programmers. Typically, such an employee must have at least a Bachelor’s degree to be hired by a U.S. employer.
The question you may ask is ‘do employers really need to bring in someone from outside the U.S. to fill such positions in the company?’
Evidently, the answer is ‘yes’.
Here’s why we know.
Each April 1st, overnight delivery trucks line up along the sidewalk outside the U.S. Citizenship and Immigration Services (“USCIS”) service center in St. Albans, Vermont – each truck filled with petitions for H-1B visas from around the United States. Visualize FedEx and UPS trucks vying for spots closest to the service drop-off in the early morning hours of April Fool’s Day. The situation is so overwhelming that USCIS, a department of the U.S. Department of Homeland Security, has even had to establish guidelines as to what to do with delivery trucks still sitting by the curb at 7:00 p.m. that evening – after the service center is closed. The reason St. Albans, Vermont is so popular this time of year is because it is one of only two service centers in the U.S. that adjudicates H-1B petitions.
There are about 65,000 H-1B visas available each year. There are also an additional 20,000 H-1B visas set aside for prospective employees who have a Master’s Degree or higher-level degree. However, an employer cannot file a petition for an employee’s H-1B visa more than 6 months before the date of hire. Since the allotment of H-1B visas becomes available the first day of each fiscal year, (October 1st), the first day an employer could file an H-1B petition, therefore, is six months before October 1 – which, as you may have guessed by now, is April 1st. Hence, the April Fool’s Day Rush.
But it hasn’t always been that way.
In fact, this is a very recent phenomenon brought about by a steep demand for skilled workers in a marketplace demanding advanced technological expertise and experience – coupled with a recent reduction in H-1B visas.
Around 1998, Congress recognized the increasing demand for the type of skilled workers under the H-1B visa program and increased the number of H-1B visas to 195,000 per year beginning in 2001; but after 2003, the H-1B ‘Cap’ reverted back to 65,000 – where it remains today despite a steep increase in demand for H-1B visas.
U.S. employers’ overwhelming demand for H-1B workers is evident in the filing process. For fiscal year 2007, petitions were filed beginning on April 1, 2006, but the allotment was used up before Memorial Day. The 20,000 additional visas for masters or advanced degrees lasted a few more months thereafter.
For this fiscal year, 2008, the service centers received over 150,000 regular H-1B visa petitions on the first day. Since only 65,000 were available, USCIS crafted an ad hoc lottery to randomly choose which timely-filed H-1B visa petitions it would adjudicate.
So that brings us to this year. Having a full year to consider how to handle the overwhelmed process to give U.S. employers greater access to a competitive global workforce, Congress responded to the problem by … doing nothing. U.S. employers responded by … moving many operations overseas where gambling on the lottery to get a foreign worker was not necessarily a sound business strategy.
It remains to be seen just how many petitions were filed this year. However, at least one accommodation was made: this year’s lottery will include 5 days’ worth of petitions rather than just one. Meanwhile, FedEx and UPS trucks are on their way back from St. Albans, Vermont, and around the country HR managers are sitting at desks with their fingers crossed – hoping that today they might just win the lottery.