http://www.shrm.org/hrnews_published/CMS_018066.asp

8/9/06 7:45 AM
Visa cap reached for workers with advanced degrees
By Kathy Gurchiek

The H-1B visa program reached its fiscal 2007 limit for petitions it accepts from U.S. employers looking to hire foreign workers with advanced degrees obtained from a U.S. college or university, the U.S. Citizenship and Immigration Services (USCIS) announced July 28.
The cap applies to those who obtained master’s degrees or higher.
July 26 was the final receipt date for employer H-1B petition requests for those types of workers. Requests received on that date will be subject to a computer-generated random selection process.
Petition requests from employers received after July 26 will be rejected unless the petition is eligible for a separate cap exemption; petitions for current H-1B workers do not count toward the mandated cap, according to the USCIS.
Rejected petitions will be returned with the filing fee, and employers may re-submit their petitions when H-1B visas become available for fiscal 2008, according to USCIS. April 1, 2007, is the earliest an employer may file a petition requesting an H-1B visa for fiscal 2008 for employment starting Oct. 1, 2007.
The USCIS says it will continue to process petition requests that were filed to:
• Extend the length of time a current H-1B worker may remain in the United States.
• Change the terms of employment for a current H-1B worker.
• Allow a current H-1B worker to change employers.
• Allow a current H-1B worker to work concurrently in a second H-1B position.
Petitions for new H-1B employment are exempt from the annual 20,000-person cap if the foreign worker will be working at an institution of higher learning, at a related or affiliated nonprofit organization, at a nonprofit research organization or at a government research organization, the USCIS said.
The congressionally mandated cap of 20,000 is in addition to the annual 65,000 cap for highly skilled foreign workers for fiscal 2007. The 65,000 cap was reached May 26—four months before the new fiscal year starts Oct. 1—and marked the second time in two years that the USCIS reached this cap before the new fiscal year began.
Under a U.S. trade agreement, 6,800 of the 65,000 visas are set aside for workers in Chile and Singapore. The USCIS projected that 6,100 of these would be unused for fiscal 2006 and incorporated that number into the fiscal 2007 cap.
Quickly hitting both caps underscores the need to reform the visa program, says the Washington, D.C.-based American Immigration Lawyers Association (AILA). It supports bills introduced in the House and Senate this year (H.R. 5744 and S. 2691) to make changes in the program.
The legislation is designed to reform the H-1B visa system, including creating “a flexible, market-based” cap, according to the AILA.
“Passage and enactment of the … bill would fix the broken H-1B system,” AILA President Carlina Tapia-Ruano said in a press release. “History has shown that highly educated foreign-born professionals bring great benefits to the U.S. economy.”
Employers use the visa program, established in 1990, to hire temporary foreign workers in specialty occupations such as science, engineering and computer programming that require certain theoretical or technical expertise. The visas have been extended to fashion models as well as to nurses, teachers, musicians, restaurant hostesses, newspaper reporters and dance instructors.
Although there are exceptions, a foreign worker can have H-1B status for three years before the visa must be renewed for one final three-year period.
Under federal law, employers must pay H-1B visa holders the same rate as the employer’s U.S. employees who have similar skills and qualifications, or the prevailing wage—whichever is higher. In addition, they must not use foreign workers to displace U.S. workers who are available to fill the same job.
The H-1B visa program came under fire earlier this year in a report issued by the nonprofit Center for Immigration Studies, which used fiscal 2004 data from the U.S. Department of Labor to claim that employers use the temporary visa program more often to import cheaper labor than to fill vacancies for which no U.S. workers are available.
Kathy Gurchiek is associate editor for HR News. She can be reached at kgurchiek@shrm.org.