It's that time of year again when human resources professionals should be thinking about what positions they plan (or I should say, hope) to fill with foreign national workers in specialty occupations requiring H-1B visas. Now is the time to be extending those offers and preparing applications for filing. In the private sector, which is largely subject to the annual 65,000 visa cap on H-1B visas, the filing season will open up again on April 1, 2013 for jobs that can begin on or after October 1, 2013. This ridiculous timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies with qualifying "affiliations" with the foregoing institutions.
The problem with caps
Every year since the cap dropped to 65,000 (plus 20,000 for individuals with US masters degrees), it has been reached well before the end of the fiscal year. Therefore, every year, employers are stuck with a very narrow timetable in which to file applications. When the economy tanked at its worst in 2008, the cap was still reached, albeit in several months. When the economy was at its best with strong job growth, the 65,000 (+20,000) visas were used up in a day. For example, in Fiscal Year 2013 that began October 1, 2012 and will end September 30, 2013, applications were received starting April 1, 2012 and were used up by June 11, 2012 for jobs that began October 1, 2012! Therefore, anyone wanting to hire an H-1B employee subject to the cap for jobs that are open now will have to wait to file on April 1, 2013 for jobs that cannot begin until October 1, 2013! Rather than Congress changing the program to a market demand based one, employers have to be ready to file on April 1, and cross their fingers. Why?
One must hope and pray the quota doesn't close early, that there aren't mass filings on April 1 creating a lottery situation where employers can only rely on luck. In addition, having to wait to put the person to work on or after October 1, 2013, means employers have to predict their work loads now, or applications will be denied if work cannot be guaranteed. Improperly benching an H-1B worker for lack of work can lead to debarment from the program and payment of back wages despite lack of work. This absurd process makes it difficult for employers on fast product development or contractual timelines. Yet, it's the only game we have to play at this time with this category, and why employers should advocate for legislative change.
Are you an employer new to H-1Bs?
In my many years of experience filing these cases, I have concluded that there are three types of employers. The first group knows about H-1Bs, has searched high and low for qualified US workers, and has not been able to fill positions with enough qualified US workers. When they come across talented foreign nationals, they file for H-1Bs, not because it's cheap, because it isn't. Rather, to remain competitive in the industry, employers will hire top talent even though the cost of filing fees, qualifying wages, compliance, and legal fees is significant to the overhead cost of that employee. These employers expect to recoup their costs through the value added by a talented employee and the potential for that employee to create other jobs for US workers, create new inventions or products, or develop new markets for the employer, directly or indirectly.
The second group of employers that I speak with are those without prior experience with H-1Bs, but are open to learning more, and likewise, have not been able to find a qualified US worker. Once the employer understands the process, what is required, confirms the cost to hire is within budget, and the employer determines the foreign national will add value to the company, these employers will test out H-1Bs for one or more employees. If the experience is satisfactory, they may hire additional H-1Bs in the future or limit their use of the program to the occasional situation when they run into a great person who happens to be from another country.
The third group of employers refuse to have anything to do with foreign nationals. Sometimes that is due to ignorance of the law, even if other visa options are available. Sometimes it is pure racial, or nationality bias, in which case, the employer may be bordering on employment or immigration related discrimination or I-9 or E-Verify violations (e.g., using nationality to pre-screen individuals instead of documenting status upon hire). But most of the time, it's because the employer simply doesn't want to be involved, can't afford the process, has found an equally or better qualified US worker, just needs a body to fill a position, even if the US worker is less qualified, or where talent or extensive knowledge isn't a requirement or concern.
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