Tuesday, July 21, 2009

Analysis and comment on H-1B usage

Immigration practitioners and employers alike have had to adjust their mindset this year with regard to the availability of H-1B numbers. At Dahan & Associates, we’ve had to pull out old templates regarding, “no H-1Bs available until the next fiscal year – October 1, 2010” and update them to indicate that new H-1B numbers are, in fact, still available. If anything was an indication that an artificial H-1B cap is unnecessary, this is. This year highlights the fact that H-1B usage is self-regulated by market conditions. Ideally, there should be no cap on H-1B numbers, allowing the market to determine H-1B need. Such a system is reasonable, would allow H-1B employers to function effectively, and would result in a real-time response of the system to market conditions. That is, by allowing H-1B usage to be an organic reflection of the labor market and economic conditions, expansion or restriction of the program’s use would occur in close parallel to growth or decline in market conditions. Conversely, a specific number of visas laid out in the black letter law results in a program that does not meet the realistic needs of American business, and a change in the written law is too slow a mechanism to be an appropriate element of control on the program.

Eliminating any H-1B cap, though, is hardly palatable to the U.S. Congress or to the American people who elect them. An appropriate compromise, then, would be a formula written in the law that takes into account economic conditions, job availability, and unemployment statistics. I do not mean to suggest that, in the hardest of times as we are in today, the H-1B program be shut down. It is clear that U.S. companies must be able to attract the best and brightest in the world. To close the H-1B program entirely in such times would be shortsighted, xenophobic, and a fast way to shoot America’s global competiveness in the foot, so it is important at all times to have some level of a robust H-1B program.

Below is a table showing the usage of H-1B numbers for FY2010 (starting October 1, 2010). The regular cap will be met at 65,000 new H-1Bs and the Masters cap is met at 20,000 new H-1Bs. Note that the Masters cap has long had 20,000 petitions, but the USCIS has indicated that it will still accept petitions because it expects that some of the already-received 20,000 will be denied. Also note that the regular cap number went up, and then came down some. The USCIS has not provided an explanation for this, but it is likely due to denial of some filed petitions, thus causing the number of new H-1Bs actually issued to go down.

FY 2010 H-1B Cap

Announce Date Regular Cap Masters Cap

April 17, 2009 43,000 20,000
April 20, 2009 44,000 20,000
April 27, 2009 45,000 20,000
May 5, 2009 45,000 20,000
May 11, 2009 45,000 20,000
May 18, 2009 45,500 20,000
May 22, 2009 45,700 20,000
May 29, 2009 45,800 20,000
June 5, 2009 44,400 20,000
June 12, 2009 44,400 20,000
June 19, 2009 44,500 20,000
June 26, 2009 44,800 20,000
July 3, 2009 45,000 20,000
July 10, 2009 44,900 20,000

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