Lawyers Journal

H-1B program is all about the numbers

The U.S. Department of Labor's Bureau of Labor Statistics predicts that professional and related occupations will provide more jobs -- 5 million -- than any other occupational group between 2006 and 2016, with computer, math, engineering and life science occupations comprising the majority of these positions.

The National Science Board, the governing body of the National Science Foundation (www.nsf.gov/nsb/) also concluded that, as a result of retirees in science and engineering over the next two decades, a decrease in graduates from these programs and/or immigrants coming to perform services in these critical areas will worsen the anticipated skilled worker shortage.

This fact - in combination with the National Science Foundation's finding that more than 50 percent of masters' degrees and Ph.D.s issued by U.S. colleges and universities are granted to foreign-born persons - places immigration squarely in the mix of factors contributing to the continued success and competitiveness of our economy. At this critical moment, then, the question is: Can the American workforce keep up with corporate demand for science, technology, engineering and mathematics (STEM) professionals without a more rational approach to our skilled worker visa programs?

A Harvard Business School study (December 2008) found that immigrants comprised nearly half of all scientists and engineers in the United States with a doctorate and accounted for 67 percent of the increase in the U.S. science and engineering workforce between 1995 and 2006. As our nation grapples with comprehensive immigration reform, the core debate, as always, centers on border security and a solution for the current 12 to 15 million undocumented persons living in America.

Moreover, as a result of a lagging economy, the public debate is often sidetracked by unfounded fears of foreign workers taking U.S. jobs, fears that ignore the reality of job creation and innovation that go hand in hand with an influx of highly skilled workers.1

Indeed, it is at this most critical juncture in our economic recovery that the United States should be expanding options for highly skilled foreign professionals to come to America to study, research, innovate and work. Implementing immigration reform to expand the number of skilled foreign professionals arriving at our door is essential to the continued success of American companies in the global economy.

The H-1B visa (specialty occupation) category created by The Immigration Act of 1990 (Public Law 101-649), since amended by the American Competitiveness and Workforce Improvement Act of 1998 (Public Law 105-277) and the American Competitiveness in the Twenty-First Century Act of 2000 (Public Law 106-313) ("AC 21"), has always been subject to a quota limit.

During the boom years in the late 1990s, the quota, known as the H-1B cap, was increased to keep up with economic demand for highly skilled workers; however, this temporary increase has since reverted back to the original 65,000 limit. Congress has exhibited little political will to create a permanent bump in this figure.

The annual H-1B cap has been met every year since 2000, preventing thousands of foreign graduates and professionals from entering the U.S. workforce. Although Congress has refused corporate America's pleas for an increase in the H-1B hard cap and has ignored economic data showing that foreign temporary professionals actually create more jobs for U.S. workers than they take away, AC21 created an additional 20,000 H-1B visas for foreign nationals who have earned a master's degree or higher from a U.S. institution.

In addition, this legislation provided quota exemptions for institutions of higher education and certain affiliated institutions, including teaching hospitals, nonprofit research and government research institutions.

With immigration reform languishing in Congress, some relief from quota limitations has come in the form of regulatory changes to the F-1 student visa category. Most students, with the exception of English-language and some non-degree programs, benefit from one year of optional practical training (work authorization) after graduation or program completion.

The 2008 Interim Final Rule (IFR 73 FR 18944) F-1 regulatory changes provided for granting an additional 17 months of work authorization to students who have completed degrees in the STEM field as long as they are employed by a company enrolled in the government's E-Verify System (employment verification system completed in conjunction with a new hire I-9).

There is a cost for many companies when making the determination to enter this program to obtain the benefit of this STEM extension. Unfortunately, although E-Verify is open to all companies, for many corporations, the unfettered access to certain employment records authorized by a signed memorandum of understanding required to enroll in this program is a deciding factor in whether or not to enter this program and obtain the employee benefit of the STEM extension.

Under the current system, the government has the ability to expand the number of qualifying STEM fields without any additional regulation. The most recent update included many additional fields, which is a critical step forward, but there are still a variety of majors that should be considered for addition.2

Ultimately, expansion of this program is highly beneficial to the economic interests of the United States, as it provides options for extension of student work authorization. Further, the additional time allotted in the F-1 student category staggers the influx of H-1B applications submitted in any one year, providing some relief from H-1B quota usage. One benefit of this approach is that it does not require any additional legislative action.

The creation of an exemption for students who graduate from U.S. institutions with STEM field degrees at any level, or for students who graduate with a master's degree or higher in one of the STEM fields, may also provide quota relief. The above examples would require Congress to act, however, and the likelihood of congressional action is bleak.

There are several other viable options for quota relief that would not require congressional action and could be instituted by the United States Citizenship and Immigration Service (CIS) immediately.

First, CIS could ban quota-exempt employers from using cap numbers. Quota exemption is an elected status. As a result, there are problematic instances where a beneficiary may request a quota number to ensure future employment and status options, or where human error results in the request of a quota number when not necessary, or fear of filing, paying a fee and government misinterpretation of the relationship qualification for quota exemption.

One critical area of potential quota relief that is particularly crucial to Massachusetts' research and health care industry is CIS's definition of "affiliated" or "related to" an institution of higher education. Over the last year, the California Service Center (CSC), the sole service center with jurisdiction over quota-exempt institution filings, has demonstrated some confusion over which employers qualify for cap exemption by requesting proof of board control or specific agreements more in line with corporate documents. In addition, this exemption has never allowed for "gray area employers" to obtain the cap exemptions.

In March 2011, CIS issued interim guidance clarifying that any institution that received cap exemption since 2006 would continue to receive cap exemption for the moment. Since that time, CIS has been reviewing its position on the definitions of the term "affiliated." There has been much advocacy by hospitals, nonprofit agencies, education and research institutions for the use of a broad, realistic definition of "affiliated" or "related."

CIS policy guidance is in the works. Many have argued that usage of any affiliation recognized by any other body of law (for example, the EPA, Medicare) should count for cap exemption. This change would allow many private hospitals to be eligible for cap exemption.

In addition, if CIS maintains its traditional exemption for individuals working for a for-profit entity at an exempt institution, additional numbers can be saved here as well.

With baby boomer retirement and increased world competition, the demand for highly skilled workers is on the rise and the United States is increasingly challenged to find better ways to attract and retain the best and the brightest. The H-1B quota exemptions and other mechanisms as described above should be utilized to provide temporary relief of arbitrary quota limits until Congress gets it house in order and acts.

However, until there is some action either by legislation, regulation or official guidance, the question remains: Can America keep up with the growing demand for science, technology, engineering and math-related professionals required in the next decade? The answer is yes, but not alone and not without the help of the next generation of immigrant professionals.

Elizabeth Goss is a partner in the law firm Tocci, Goss & Lee, where she specializes in the representation of physicians, researchers, trainees and students in the higher education and health care fields, securing their temporary and permanent visas. She can be reached at [e-mail egos] or at (617) 542-6200.

1In 2008, Bill Gates testified before Congress that for every H-1B position requested, Microsoft added another four employees to support that worker. In a March 2008 report, the National Foundation for American policy found that for every sponsored H-1B worker, an additional 7.5 workers were hired.

2http://content.govdelivery.com/bulletins/gd/USDHSICE-7434c

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