Access to Skilled Visas Could Become Even More of a Long Shot

Published: 02/14/2018

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Thousands of extra H-1B seekers could make the already popular high-skilled guestworker visa even harder to come by this year

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Employers already face an uphill battle to get the visas: demand has far outstripped supply in recent years, prompting a lottery. Adding even more petitions to the mix could leave hosts of employers in a variety of industries with few options for retaining critical foreign talent within their organizations.

OPT/CPT Blast Resume to 1000+ employers

“It’s like a perfect storm of so many different factors” contributing to increased H-1B filings this year, Michael Boshnaick of Fragomen, Del Rey, Bernsen & Loewy in Los Angeles told Bloomberg Law Feb. 9.

Uncertainty over two immigration programs similar to the H-1B visa--spousal work permits and TN visas--could spur employers to seek H-1B visas on behalf of workers in those programs.

The Homeland Security Department’s most recent regulatory agenda indicates that the DHS intends to withdraw a 2015 regulation granting work permits to the spouses of H-1B workers in the green card backlog. And TN visas--a product of the North American Free Trade Agreement--may fall by the wayside as the trade deal is renegotiated.

Rush Anticipates More Changes

There’s also a push to get H-1B visa petitions in before the Trump administration makes more changes to the program, Boshnaick said.

Last year, H-1B filers saw more requests for additional documentation from U.S. Citizenship and Immigration Services, and the agency issued new policies scaling back visa eligibility and declining to defer to prior decisions when considering visa extensions.

And there’s a “buildup from prior years” when employers tried to get H-1B visas but were shut out during the lottery process, Boshnaick said.

Annual Cap Reached in a Flash

There are 65,000 H-1B visas available each year, plus an additional 20,000 for workers with advanced degrees from U.S. colleges and universities. That cap has been reached--and exceeded by a large margin--during the first week employers could apply in each of the last five years.

The visas are popular in the tech industry, but they cover a variety of occupations such as accountants, physicians, lawyers, and teachers.

“We’re always going to exceed the quota because the quota’s artificial,” Denyse Sabagh of Duane Morris in Washington, D.C., told Bloomberg Law Feb. 8. Congress “just picked a number out” when it set the annual limit, said Sabagh, a former president and former general counsel of the American Immigration Lawyers Association.

Employers submitted 124,000 petitions in 2013, and that number jumped to 236,000 in 2016 before dropping slightly last year to 199,000. But could that number increase as more employers seek to sponsor H-4 spouses with work permits and TN visa holders for H-1B visas?

Take Multiple Shots at Visas, Employers Advised

Immigration attorneys are advising employers to seek H-1Bs for these groups of workers, José Olivieri of Michael Best & Friedrich in Milwaukee told Bloomberg Law Feb. 9. “Take as many opportunities at the H-1B as you can,” he said.

More than 100,000 H-4 spousal work permits have been issued since the program started in 2015, according to USCIS data.

The State Department issued 14,646 TNs to professionals from Mexico in fiscal year 2016, according to the most recent agency data. There were 122 TN visas issued to Canadian professionals that year.

But there were 673,816 TN border crossings from Canada in FY 2016, according to Customs and Border Protection data provided to Bloomberg Law. Most Canadians are granted TN status from CBP officials at ports of entry rather than getting a visa from the State Department.

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