Published April 20, 2004 in The Boston Globe.
THE PAST several months
have seen three key developments in the area of immigration policy. First, in
early January the Bush administration floated an amnesty proposal to give
illegal immigrants a three-year work visa if they prove they have a job and are
prepared to pay a fee. Under the president's plan, a significant part of the
underground economy would presumably enter the sunlight, where workers could be
identified, tracked, and brought within the boundaries of prevailing regulation.
Then, on Feb. 17, the US Citizenship and Immigration Services (formerly
INS) announced that it had received enough visa petitions to meet this year's
congressionally mandated quota of 65,000 new specialty occupation workers. In
other words, the agency has stopped accepting new visa petitions for workers
seeking first-time employment in H1B status. Three weeks later, the annual quota
that applies to low-wage temporary workers under the H2B visa program was
exhausted. More than ever before, our nation's program for issuing temporary
work visas is ready for a comprehensive overhaul.
Whether the Bush administration's reform plan can gain any traction in
Congress is subject to debate. Of more immediate and practical concern to
employers across the nation will be the impact associated with the exhaustion of
the H1B quota.
The H1B visa program for specialty workers is one of the more complicated and
politically controversial components of US immigration law. A specialty
occupation is defined as one that requires highly specialized knowledge and at
least a bachelor's degree in a related field. In certain cases, documented work
experience can be accepted in lieu of a bachelor's degree. Examples include
certain positions in the fields of accounting, architecture, business
specialties, engineering, education, law, mathematics, medicine, physical
sciences, and certain social sciences, among others. Once a specialty occupation
worker qualifies for an H1B visa, that visa allows him or her to work lawfully
for up to six years unless he or she loses that job.
The annual quota
represents the limit on the number of H1B petitions for "new employment" that
can be approved in a particular fiscal year. Once the quota is reached, a person
located outside the United States cannot obtain an H1B petition approval until
the following fiscal year, which begins Oct. 1. For someone already in the
United States, the consequences of the quota depend upon his or her status and
the respective expiration date of that status. Once the quota is reached, it is
not possible to change status to H1B in that fiscal year. This leaves some
people "locked out," without a way to protect their right to lawfully work in
the United States. Obviously, it also impacts employers, who are limited in
their ability to hire workers needed during the time between the cap having been
reached and Oct. 1, the start of the next fiscal year.
Under certain circumstances, applicants for specialty occupation visas are
not necessarily subject to the quota. First, petitions for current H1B visa
holders seeking an extension of stay do not count against the annual quota.
Second, petitions for current visa holders requesting a change in employer or in
a worker's terms of employment will also still be processed by the immigration
agency. Third, petitions for workers to be hired by certain educational
institutions or nonprofit research organizations are not subject to the quota.
Fourth, Citizenship and Immigration Services began accepting new H1B petitions
for filing as of April 1, but those petitions cannot reflect a start date any
sooner than Oct. 1.
Despite these exceptions, some categories of visa applicants will be
adversely affected. In the absence of congressional action to modify the quota
-- very unlikely in an election year -- both employers and aliens looking for an
employment sponsor must begin considering other visa options. Recent university
graduates who hoped to convert their student visa status through an H1B filing
ought to explore alternatives, as should persons in other temporary visa
categories who were intending to transition to H1B visa status prior to
expiration of their current status.
From an employer's standpoint, it is easy
to be a fan of immigration but a critic of US immigration policy. The H1B visa
program is a case in point. In recent years, the annual quota that applied to
the H1B program was substantially higher than the present level of 65,000 visas.
Even though our economy needs a kick-start, election year politics is almost
certain to doom any effort to address the early exhaustion of the annual H1B
quota. While we ought to ensure the ability of US workers to find well-paying
jobs, productivity gains and economic growth depend upon ensuring that
businesses have access to workers best suited to skilled positions. US companies
must be able to recruit, then retain, appropriate talent to ensure that their
companies prosper regardless of whether that talent is located abroad. By
limiting this ability, we only impede the pace of economic
recovery.
Matthew LaMourie is an immigration lawyer with the firm of
Preti Flaherty in Portland, Maine.
