Sullivan: Irony abounds in the H-1B visa debate

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Sullivan: Irony abounds in the H-1B visa debate

Fri, 06/07/2019 - 5:19am -- tim

by Brian J Sullivan, Esq, MSK Attorneys, Burlington In his most recent proposal to overhaul our broken immigration law system, President Trump took pains to emphasize that “merit” rather than “nepotism” should be the guiding principle of those laws. Initially, it is hard to look beyond the fact that nepotism – which is more accurately described as the promotion of family unity – was used by the president and millions of others to bring close family members to the United States and allow them to remain and contribute to our society and economy.

The notion that family-based and employment-based immigration systems are incompatible with one another presents a false dichotomy. For decades, we have permitted skilled workers and professionals to immigrate to this country and bring their family members with them. There is no zero-sum game here; America is not even close to being “full.”

As we discuss immigration reform, it is interesting to examine how one of the leading merit-based visa programs – the H-1B category – functions today.  That category allows U.S. companies to employ aliens for a temporary period in “specialty occupations,” defined as those requiring “theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the U.S.”  In other words, the H-1B category is for skilled workers and professionals.

For many years, this program allowed American employers to bring over highly skilled and educated employees to work in a variety of fields, including high tech.  The number of such employees was limited by annual quota, which was as high as 195,000 in the fiscal years 2001 to 2003.  That amount reflected the demand for that type of visa.

During the Bush 43 administration, Congress reduced the annual H-1B quota to 65,000 visas, where it stands today.  There are also an additional 20,000 H-1B visas available to those aliens who have received a master’s or higher degree from an accredited U.S. University.

For many years, the demand for those visas has far outpaced the supply.  According to a recent U.S. Citizenship and Immigration Services (USCIS) release, there were applications for over 190,000 visas submitted during the H-1B lottery “season” this past April.  It doesn’t take an advanced degree or even much more than basic arithmetic to see that the number of applications was more than double the number of available visas.

According to the Heritage Foundation, a return to the 195,000 “cap” would increase revenues of U.S. employers by nearly $69 billion dollars over eight years.  By keeping the cap at 65,000, we are leaving money on the table.

In addition, USCIS adjudicators are denying H-1B visa petitions at an alarming rate.  In fiscal year 2017, the rate of such denials was 13%.  This year, it has risen to 32%, according to the non-profit National Foundation for American Policy (NFAP).  Those of us in the immigration law community know that the reason for the increased denial rate is that USCIS is adopting standards for compliance with the specialty occupation test that are ever more difficult to meet.  Case in point: NFAP found that the rate of denials for extensions of H-1B status (usually in the same job) has jumped from 3% to 18%.

Our leaders say that we want the best and the brightest to join us.  Our policies make it harder and harder for them to do so.

Brian J. Sullivan, Esq. is a Founding Partner of MSK Attorneys in Burlington.  In addition to land use and telecommunications law, Brian has over 20 years of experience practicing immigration law.