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AILA Recommends Changes to H-1B Visa Program

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The American Immigration Lawyers Association (AILA) commented on the announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2011 since the filing window opened on April 1 last year. The nearly ten months it has taken to hit the FY2011 cap is indicative of the realities of the marketplace especially when contrasted with the mere week it took to hit the 65,000 cap during FY2005-2008 when the economy was booming.“The economy, while recovering, is still slow and so the demand by business for any new workers is still low. It is no surprise that the demand for foreign workers is also less than it was five years ago and so 65,000 H-1B visas lasted at least through 4 months of FY2011. But, during the boom, that number and that cap was clearly inadequate,” said AILA President David Leopold.

“A common sense approach to high skilled visa distribution would be more flexible to keep in tow with our dynamic economy instead of pinning the visa numbers to a static limit that was determined by Congress in the last decade,” concluded Leopold.

H-1B petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialized knowledge (such as the sciences, medicine and health care, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

USCIS has also announced that on December 22, 2010, it had received more than 20,000 of petitions that could be exempted from the cap. It is rare for the U.S. master’s degree exemption to fill up before the H-1B cap hits and considered another reflection of market dynamism. “The master’s degree exemption hitting before the cap is just another illustration of the slow economy. While most businesses are cautious about hiring in a slow economy, those that truly need a specialized knowledge worker and can’t fill that position with a U.S. worker will have to hire a foreign worker using the H-1B process,” said Crystal Williams, AILA’s Executive Director.

“But, what happens when the economy is booming? How many businesses will have to go without specialty knowledge? Under the current cap, it could be tens of thousands. It’s time to change the H-1B visa process,” said Williams.

AILA InfoNet Doc. No. 11012910 (posted Jan. 29, 2011)

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