A New H1B Cap Season, and a Push for Reforms

On April 1st, the USCIS kicked off the filing season for H1B visa applications, and will now accept petitions for H1B employees who would begin work on or after October 1, 2011 – after the start of fiscal year (FY) 2012. (See FY2012 H1B Cap Season Commences April 1, 2011, MurthyDotCom, 01.Apr.2011.) The new filing season brings with it some perennial complaints. Labor advocates worry aloud about the possibility that H1B employees will displace American workers, and hold down their wages. By contrast, the high tech industry argues that recruiting the best and brightest workers from overseas is far from a zero-sum game, but one that leads to technological innovation and job creation that benefits everyone. They point to the many successful Silicon Valley startups – like Google – that were founded by immigrant entrepreneurs.

Neither group likes the current H1B cap, and although there is emerging consensus that the system is in need of an overhaul, the precise contours of the changes remain subject to debate. Raising the cap is controversial, but there may be other ways to increase the number of H1B visas available to high-tech companies. At a recent hearing of the House Subcommittee on Immigration Policy and Enforcement, a leading GOP member, Lamar Smith (R-TX), suggested that H1B visas be restricted to jobs in STEM fields – science, technology, engineering, and math – and less available for non-tech positions such as fashion models, photographers, pastry chefs, and so on. (See H1B Cap Change Sought by Key Congressman, by Patrick Thibodeau, Computerworld, 31.Mar.2011.) According to Computerworld, the hearing also discussed the possibility of increasing the availability of green cards, “particularly for foreign advanced degree graduates of U.S. universities, as an alternative to H1B visas,” noting that “President Barack Obama has signaled he would be amenable to such a change in his State of the Union address.”

At the same hearing, several Democrats – including Congressman John Conyers (D-MI), Ranking Minority Member of the House Judiciary Committee – argued in favor of providing more green cards to foreign students educated here, The Hill reported. (See Pressure Mounts for H1B Reform, by Gautham Nagesh, Hillicon Valley blog, The Hill, 31.Mar. 2011.) According to The Hill:

“The inability of math and science grads to remain in the country after earning their degrees is another frequently cited concern of the technology community. Conyers said visa holders should be able to transfer their status to another employer. Hira and Conyers were both adamant that guest workers must be paid the same wages as their homegrown counterparts to prevent the systems from being a source of cheap labor for U.S. tech firms.”

Increasing the availability of H1B visas is likely to be a hard sell under current circumstances, given the number of Americans who are still out of work. Whether the ultimate solution is to lift the H1B cap or to provide more green cards to for high-tech workers, the economic need for these workers is not going away. Observers in academia and industry have long noted the mismatch between the supply of American-born STEM graduates and the burgeoning demand for these workers in the high-tech sector.

According to the Tech America Foundation, about 25 percent of all scientists and engineers in the U.S. are foreign-born, while 54 percent of math doctorates, 60 percent of computer science degrees, and 65 percent of engineering degrees granted here are earned by foreign-born students – many of whom have to go home after their studies are completed. (See Tech America Renews Drive to Increase H1B Visas, by Alice Lipowicz, Washington Technology, 30.Mar.2011.) There is increasing need for a system that is flexible enough to allow these graduates to stay here and work after graduation, instead of sending them home, degrees in hand, to build our competition overseas.

As Washington Technology notes, demand for H1B workers – about half of whom are in high-tech jobs – normally exceeds the H1B cap. As the recovery gathers steam, labor market demands will increase pressure on the H1B system, and this pressure will only be relieved when Congress either lifts the cap, or provides more green cards for the foreign-born STEM workers upon whom our high-tech industries depend.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.