Understanding And Managing The H1B Visa Cap

H1B visas are work permits that allow immigrants, including those that have received advanced degrees at accredited learning institutions worldwide, to work in the U.S. for up to six years in "white collar" positions.

Currently, there is an annual cap of 65,000 visas available for businesses hiring immigrant workers through H1B visas. This hiring limitation presents a problem for those looking to expand their talent pool as the cap does not adequately support the demand for H1B visas by U.S. businesses. The 65,000 H1B visas quickly will be filled by July or August of 2006 -- meaning that immigrants hired after this date will not be able to work legally until the next fiscal year.

Due to the shortage of H1B visas, a provision in the U.S. immigration reform bill has been proposed that, if passed, will allow immigrants who have earned an advanced degree in science, technology, engineering or math to be exempt from the cap.

Additionally, the provision would increase the visa cap from 65,000 to 115,000 and allow the number of H1B visas to fluctuate depending on market demand.

Until this proposed provision of the current immigration reform bill is passed, companies that require immigrant workers in areas such as manufacturing, construction and telecommunications must be educated about H1B visas. The following is a list of tips to help these industries manage the current visa cap:

Option #1: Hire Within U.S. Borders
One simple option is not to hire workers who require H1B visas. However, this option poses a drawback in that if an employer eliminates hiring those who need H1B visas, the company may cut itself off from a large pool of potential hires, especially in the high-tech field. This may give competitors with open immigration policies the upper hand.

Option #2: Consult Immigration Specialists
Another option for companies hiring international employees is to consult outside immigration experts to educate companies' internal hiring managers and recruiters about the H1B cap and current U.S. immigration policies. An immigration specialist can provide expertise on a wide range of immigration issues. For example, new hires from college or overseas are subject to the cap, but lateral hires for an employee already in H1B status working with a different company are not. Additionally, foreign nationals who hold a U.S.-earned master's degree or higher and workers from Canada, Mexico, Singapore, Chile or Australia have special quotas not included in the 65,000 limit.

Option #3: Use H1B Visas Wisely
It is also important for companies to strategically plan how they are using H1B visas to ensure they are being effective and efficient. First, a company must know how many H1B visas it has and in which areas foreign workers are needed. Second, it is important for companies to review how they recruited their H1B workforce. Knowing the pattern of H1B hires can help corporations devise a way to minimize the effects of the H1B cap on recruitment.

Option #4: Identify H1B Applicants Early
Companies may choose to interview college interns to identify potential H1B applicants early. Internship programs are a way to evaluate foreign graduate students prior to their graduation. Through internships a company can plan ahead to meet the cap.

International students in the U.S. are allowed Optional Practice Training (i.e., a work permit) for up to 12 months after graduation so they can start employment shortly after they graduate while they await H1B status.

Option #5: Recruit Immigrants Laterally
Since H1B employment transfer cases are not subject to the cap, companies also have the option of directing their resources to recruit lateral hires. It is advantageous for companies to hire immigrants with prior experience. In addition to providing the company with a competitive advantage, an immigrant's experience with a previous employer may also strengthen his or her green card application in the future.

Due to fear of a backlash from an electorate afraid of outsourcing, it is not clear that Congress will raise the cap in this election year. Therefore, it is more important than ever for companies to learn how to manage those H1B visas that are available. Even more importantly -- especially in the current political environment, employers should keep up lobbying efforts in Congress, emphasizing that these workers are vital to American competitiveness and pushing Congress to increase the number of H1B visas to allow the law of supply and demand to control the import of critical talent to the U.S.

Jared Leung is senior counsel at Littler Global, an employment-based global migration law firm in Phoenix, Arizona. Mr. Leung focuses his practice in U.S. inbound corporate immigration and I-9 compliance. He can be contacted at [email protected] or 602-256-6700.