Category: H1B visas

Why is Our H1-B System so Broken? How can it be fixed?

I remember the day when I could apply for my H1-B visa. It was a day after I finished law school. I applied for my Optional Practical Training (OPT), giving me one year to find a job that would sponsor me for a work visa, which would ultimately lead to my permanent residence. I write this post because we are approaching that magical April 1st date, when many dreams would be built, and so many more would be destroyed. Our H1-B system is simply broken, and it is in dire need for an overhaul.
For those of you that do not know about the program, I will give you a brief introduction. The system is built to attract professionals into our workforce. A United States employer would apply for an employee who possesses a Bachelor’s degree to stay on and work for them for six years, the maximum amount of time allowed under the program. Congress has limited the amount of visas available in any given year to 65,000 with an additional 20,000 visas available for candidates with a Master’s degree, which do not count towards the original cap. The employer would apply for a Labor Condition Application (LCA) from the Department of Labor, which should give the employer the magical salary that he should pay the candidate. The employer then submits an application to USCIS, hoping that his candidate’s application makes it in time for a coveted spot in the 65,000 available visas or in the 20,000 visas available for other candidates. In case USCIS receives more applications than available visas, there will be a lottery to select the lucky applicants whose numbers get called.
Among the several problems with this system, two are most dangerous 1) the system does not take into account the real needs of the labor force and 2) the system is so dominated by employers making it unfair to foreign employees.
As to the first problem I mention, the cap Congress has placed has not relation to reality. The fact remains that the government receives more applications than available visas shows that our labor market needs more workers than available visas. Immigration practitioners, and some in Congress, agree that the number of available visas is arbitrary. The new system should take into account our need for more STEM graduates than others. The system should give priority to H-1B applicants who have graduated with STEM degrees over those who do not. I acknowledge that is this system was in place in 2010 when I received my visa, I would not have gotten one. However, the system is more important than the needs of some people. This preference scheme would make the system more favorable to graduates that we need in our system.
The second problem is the most dangerous. The fact is that the LCA can be manipulated by employers. In my case, a holder of three graduate degrees with several years of experience for example, an employer could ask for a candidate who had just graduated from law school to suppress the salary required to abide by federal law. This would mean that a candidate that would make $84,000 a year in the Tampa Bay area as an attorney is being paid $52,000 under the current LCA scheme. This is totally unfair. One possible way to fix this problem is to require the employer to list the real qualifications of the prospective employee and not the desired qualifications used by the employer to suppress the employee’s salary. This would force the employer to pay the actual fair salary mandated by the market.
Another problem with the system is one that is related to the above discussion: the fact that the employer holds all the strings, making the employee totally dependent on his employer and forcing him or her to put up with any abuse. An H1-B employee lives under the threat of deportation every second of every day during their employment. The employer could terminate their employment and they would be forced to return to their country destroying the lives they have established in the United States. One possible solution that has been floated is to give an employee 60 days to find another job to remain in the United States, allowing him some flexibility in case of termination.
Lastly, it is time for Congress to increase the number of H1-B visas so we could compete with other countries, whose immigration processes attract these immigrants. We are simply losing bright minds in this battle for the future of the United States.
Our current system is broken. I hope that this post could be used as a blueprint for its reform.

Are you Ready for the H1B Filing Season? Why Acting Fast Could Increase Your Chances of Getting an H1B Visa.

Are you ready for April 1, 2013? On that day, an immigrant hoping to acquire an H1B visa, will be able to apply for one of the 65,000 visas that will be available for fiscal year 2014. This year, with the recovering economy, moving fast might increase your chances of being one of the lucky few that will get one of these visas. If you are a holder of a Master’s degree, you will be able to apply for the 20,000 held specifically for applicants with these degrees, which are not counted towards the quota.

So what is an H1B visa? An H1B visa is a visa that allows an applicant, hoping to fill a “specialty occupation”,   to work in the United States. The visa is limited in duration and might lead to an application for permanent residence in the future. A “specialty occupation” is one that requires at least a Bachelor’s degree or its equivalent. Applicants who do not hold a BA, could still qualify, if they have experience equivalent to that degree. There are also some minimum salary requirements that an employer must meet for its employee to  receive the visa.

If employers are worried about filing in time for their employees, the employer will be able to apply through premium processing. Premium processing will lead to the adjudication of the application within two weeks. There is an extra fee that the employer must pay for this service.

If you are an employer or employee interested in filing for an H1B visa, please contact the attorneys at Tucker & Ludin at 727-572-5000 or visit www.tuckerludin.com