By: Matthew LaMourie

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.