Senate Holds Hearing on High Skilled H-1B Workers as FY 2017 H-1B Season Begins

The Senate held a hearing on February 25, 2016 on the H-1B high skilled worker program just as employers around the United States are preparing to file for foreign nationals to fill key roles on a temporary basis.

The H-1B program permits a U.S. employer to file for a foreign national to temporarily fill a position in the United States provided the position requires at minimum a bachelor’s degree, and the United states Citizenship and Immigration Service (“USCIS”) deems the position to be professional.  There are other requirements, too, including an employer representation certified by the Department of Labor that the employer will pay prevailing or actual wages to the foreign worker as it does to U.S. workers in the area of intended employment, or to its other, similarly situated workers.

The statute caps H-1B visa numbers at 65,000 each fiscal year, and provides an additional 20,000 visas solely for U.S. earned masters or higher degree holders.  In recent years, the statutory allotment of H-1B visas has proven to be inadequate.  Last year, U.S. employers submitted ~224,000 H-1B petitions for the 85,000 visa numbers which became available on October 1, 2015.  Employers can file 6 months in advance of the upcoming fiscal year.  By the end of the first week in April, 2015, the earliest time when employers could file, all H-1B visa numbers for the following fiscal year were accounted for.  USCIS conducted a “lottery” to randomly select which petitions were the ones chosen to fill the quota.

As the economy continues to improve, FY 2017 may result in even greater number of H-1B visa petitions for the number of H-1B visas available.

Many employers, especially in the high tech sector, use the H-1B program to employ STEM graduates to address marketplace shortages of U.S. workers in this and other areas.  One study done in 2012 in partnership with the U.S. Chamber of Commerce, found that every foreign national U.S. university graduate who remains in the U.S. employed in a STEM field generates on average of 2.62 U.S. worker jobs.  Principal sectors of the economy which benefit from the H-1B program include manufacturing and healthcare.

Employers today have to evaluate the chances of their H-1B petition being chosen and the costs of preparing the application against the value that the foreign national represents in skill and talent, and the paucity of similarly skilled and available U.S. workers.  No U.S. employer should be handicapped and made to rely on a lottery to fill key staffing needs.