Recent bipartisan discussions in Washington offer an encouraging sign that Congress intends to address the limitations of our business immigration system. Significantly, the political momentum for comprehensive immigration reform comes as employers scramble to prepare for the dreaded H-1B cap season – where applications need to be filed by April 1 in order for the professional worker to start on October 1, 2013. As competition for H-1B visas is expected to increase, it is clear that the demand for high-skill workers in a recovering economy necessitates a sweeping overhaul of our business immigration system.
Following the November elections, Congressional leaders recognized a shift in public support for comprehensive immigration reform. While prior attempts to modernize our current system were frustrated by divergent Democratic and Republican platforms, recent bipartisan proposals clearly indicate that Congress recognizes the essential role foreign professionals play in stimulating innovation and driving economic growth across domestic industries.
In a progressive step toward meaningful legislative action, eight senators unveiled a bipartisan framework to guide comprehensive reform and reduce critical gaps in our employment-based temporary and permanent immigration systems. Fueling momentum for comprehensive reform, a second bipartisan Senate group introduced the Immigration Innovation Act of 2013 (“I-Squared”), which aims to expand employer access to high-skill foreign professionals. The dynamic changes proposed in the bipartisan legislation mark a concerted effort to directly address key issues faced by U.S. employers and foreign nationals.
Each April, employers in a wide range of industries, including technology and financial services, attempt to file H-1B applications before the cap is exhausted. Currently, high-skill immigration laws limit the number of available H-1B visas to 65,000 and exempt from the cap an additional 20,000 foreign nationals holding advanced degrees from American universities. These numerical limitations, largely left unchanged since 1990, spawn fierce competition between U.S. employers and leave domestic industries at a significant economic disadvantage. While it took seven to ten months to reach the cap during the peak “Great Recession” years of 2009-2011, employers traditionally have exhausted the available 85,000 H-1B visas in a matter of days. Congress and the President acknowledge that these restrictions have resulted in a business immigration system that cannot meet the demands of an increasingly globalized economy.
I-Squared directly addresses the issues posed by H-1B numerical restrictions to ensure that domestic employers are able to hire high-skill professionals regardless of citizenship or country of origin. The proposed legislation establishes a base of 115,000 visas annually and puts in place a market-based H-1B escalator that allows the cap to increase up to 300,000. The escalator tracks the number of H-1B applications submitted to USCIS and adjusts the cap up or down based on domestic labor demands. Additionally, the proposed legislation uncaps the exemption for foreign nationals who hold advanced degrees from American universities.
While current numerical restrictions have left U.S. businesses struggling to find qualified applicants, existing high-skill immigration laws also prevent employers from retaining foreign talent. I-Squared directly addresses this issue by establishing clear transition periods for, and removing restrictions on, high-skill foreign professionals that change positions or employers.
Under the current regulatory scheme, USCIS exercises broad discretion over the review process for petitions to extend an H-1B worker’s status in the United States. While these petitions are subject to re-adjudication, USCIS regularly denies extension petitions even though the circumstances of the foreign national’s employment have not changed or have changed only slightly.
I-Squared reflects bipartisan sentiment that employers should be able to rely on previous USCIS decisions. In limiting the conditions under which a previously approved petition is subject to re-adjudication, the bipartisan proposal restricts the agency’s discretionary authority to deny H-1B extension petitions.
Although it remains unclear whether Congress will incorporate the proposed bill into broader legislation, I-Squared signifies an exciting movement toward a new era of bipartisanship in the area of comprehensive immigration reform. Despite the broad consensus throughout Washington that business immigration reform will encourage economic growth, the bill likely will face long-time critics of the H-1B system who claim the current level of high-skill immigration is sufficient to satisfy domestic labor demands. Opponents likely will introduce proposals to expand worksite verification enforcement provisions and strengthen wage and recruiting requirements. However, maintaining existing regulatory controls over the H-1B category will perpetuate a system that undermines the value high-skill foreign workers bring to U.S. businesses. In order to overcome restrictionist legislation, employers must advocate for a sweeping overhaul that incorporates the business immigration reforms proposed in I-Squared. While there may be some time before Congress enacts substantial legislation, I-Squared clearly indicates that both parties are ready to take unified action and bring our business immigration system in line with the demands of a globalized economy.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at email@example.com. Christopher DosSantos, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.