Should the H-1B Annual Cap Be Increased?


employment immigrationThe H-1B visa is a common immigration tool for hiring highly-skilled foreign nationals. Under the H-1 visa program, foreign workers who are employed by U.S. companies in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers, can become authorized to live and work in the U.S.

There are certain drawbacks to the H-1B visa program, however, most notably its strict quota caps. As we recently reported, the 2015 H-1B visa quota was met quickly, with the U.S. Citizenship and Immigration Services (USCIS) announcing on April 7 – just 6 days after the application period opened – that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2015, and that it had received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

Not only had the quota limit been met, but it was far surpassed. In fact, USCIS reported that it received approximately 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. Because the quota limit was met, on April 10, 2014, USCIS completed a computer-generated random selection process to select those petitions that would be used to meet the 65,000 general-category cap and 20,000 advanced degree exemption cap. Unfortunately, those petitions that were not randomly selected were rejected.

Given that the H-1B cap is often met quickly, many people question whether the quota limit should be increased. Although skeptics fear that an increase in the H-1B visa quota would eliminate jobs for U.S. citizens, an increase in the H-1B visa quota could help the U.S. economy and create jobs for U.S. citizens. Many of the rejected H-1B visa petitions are filed by U.S. employers on behalf of foreign nationals who were educated in the U.S. while on a student visa, and a 2012 report found that every foreign-born student who graduates with an advanced degree from a U.S. university and stays in the country to work in a job in science, technology, engineering, or mathematics (a STEM field) creates on average 2.62 jobs for U.S. workers. Unfortunately, due to the limited number of H-1B visas available, many of these foreign-born U.S. graduates are forced to leave the U.S.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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