It's March and here we are in the middle of another H-1B cap season. So I did what I do almost every day this time of year: I got up to head in to the office. But first I went for a run to clear my head. It is Saturday. It is 7:24 a.m. and 10 degrees outside. As I head up the snow-packed trail to find the sun at the top of the hill, I think about my clients and case strategy and writing this blog. I will spend the next hour in the chilly air, in the woods, crunching along the trails thinking about this because this is what I do. And I start to think that getting up on a Saturday in 10 degree weather to go for a run before 8 a.m. is a lot like filing an H-1B under the cap for a small company or a newer company or computer or engineering company. It probably doesn’t sound like a good idea and not many people want to do it – but the rewards are worth it.
Why does this matter?
We all know the challenges of filing a petition under the H-1B cap: the demand far exceeds the supply of 65,000 H-1Bs that are available each government fiscal year (plus the 20,000 more if you hold a Master’s from a U.S. University), the cascade of new USCIS policies and interpretations, the increasing numbers of RFEs (Request for Evidence) issued by USCIS on pretty much any case, the complete randomness of a lottery system. You can look up the laws and you look up all sort of advice on the internet and there are thousands of great immigration lawyers in this country. I write to give perspective based on my experience, hope and a little humor in the process.
My office is in Syracuse, NY. I sit in the midst of numerous colleges and universities scattered around upstate New York that graduate large numbers of international students in the Computer Sciences and Engineering and IT programs. We also have an increasing number of small start-up tech companies and small to mid-size engineering and tech-based companies that need Software Engineers, Computer Systems Analysts and Programmers, data analysts, IT managers and web designers. We are the perfect storm of employers who need these skilled workers; foreign nationals who have the skills for the jobs; and a dearth of U.S. workers with the skills or training to fill them. But we are also just a microcosm of what is happening nationwide. I have clients from all over the country who simply need the software developers , tech support, or particular skilled worker for their industry and can’t find people with the skills among the U.S. pool of applicants.
What can employers and foreign nationals do?
The answer is to work with an immigration lawyer early in the process and devise a short-term and long-term strategy. For the short-term, perhaps you are putting together your case for this cap season by building the evidence to prove the particular education and skills of the foreign national match the exact skills needed for the job. For the long-term, it means perhaps planning to petition for that worker more than once if they are on STEM OPT and can get several chances at the H-1B lottery. It also means thinking creatively about alternatives such as O-1 or L-1 visas that may be options depending on your business. But mostly what it means is giving up control over that which you cannot control. I am an immigration attorney and when I go home, it is to a house with teenagers waiting for me –I am learning to master the skill of only trying to control what I can, and letting go of the rest.
So what can we control?
Obviously, we do not have control over the lottery system for the H-1Bs. But you do have some control over the contents of your case so that if it is selected for processing, the best evidence is included to support your H-1B petition. This means thinking creatively and thoroughly about the immigration requirements and the industry standards. This means making your best case to get your best worker in to the job.