Employer seeks quality candidate; employer finds their match. But problem! Candidate is not a US citizen and hence needs a visa. = There is only a 36% chance that the employer will be able to employ the chosen candidate and there is a 100% chance that the employee will be unable to start until October 1, unless the employer is a nonprofit institution!

This year USCIS (United States Citizenship and Immigration Service) received 233,000 visa applications for 85,000 spots! So there was a 1 in 3 chance that a Bachelor’s degree holder would be able to obtain a slot in the visa Lottery.

US companies open offices overseas because that is where the sales are. Factories, back offices, retail, affiliates, branches, subsidiaries. But product is researched, developed and nurtured in the US. The customers are overseas, but the development is here, which is why US companies are demanding more visas for employees. Companies need more technical talent here, so that they can sell more overseas and enrich the bottom line for US stakeholders. Legal employees contribute to taxes, consumer spending, real estate, banking, insurance and social security!

US Industry Loses

US universities spend roughly $250,000 per student in a PhD program (stipend, tuition, grants and other benefits). When a US Masters or PhD applicant cannot obtain a visa, he or she either returns to their own country or finds greener pastures in Canada, UK and other European countries and Australia, who are not shy about accepting them.

The ‘cap’ of 65000 for Bachelor degree H1B visas is artificial. Industry is self-regulating. If there is no demand for H1B jobs, there will be fewer visas issued. For example, in 2008 and 2009, the cap was filled in the first week. But in 2011 and 2012, the cap was reached only in December, and January of the following year. In 2013, the US economy was in recovery and the cap was reached in the first week. The average pay of H1B workers is $70,000 (according to USCIS H1B Handbook for 2011, 2012 available at http://1.usa.gov/Q8qXAp). In general, these are not workers who are short changed or paid lower wages. Employers also have to factor in cost of ‘onboarding’ these employees in addition to wages and other benefits paid to US workers.

The public are focused on just computer programmers and other IT employees. But the truth is that there are other professions that also use the H1B program such as occupations in Architecture, Engineering and Surveying, Administrative Specializations, Education, Medicine and Health, Managers, Mathematics and Physical Sciences, Life Sciences, Other Professional, Technical, and Managerial Occupations, Social Sciences, Art, Law and Jurisprudence, Writing, Entertainment and Recreation, Sales, and Museum, Library, and Archival Sciences, which are 40% of the cap based applications.

Companies such as Microsoft have started opening offices over the border in Canada, which has a ‘friendlier’ immigration system which accommodates guest workers easily without fuss.

The Solution

Expand the number of visas for US Master degree holders. This would boost the US University ‘industry’ and reverse brain drain of US trained foreign students leaving with their US gained knowledge to enrich ‘home’ countries, that increases competition for US companies!

Expand and create an H1B visa quota for entrepreneurs, because these start-ups will eventually employ local US workers. Tie these visas to local incubators who can become sponsors for talent. This will encourage industry in economically depressed areas, much like the Conrad program does for rural health and EB 5 visas does for ‘Targeted Employment Areas’. Today the capital threshold required for a startup has dramatically shifted from the millions to a few thousand dollars, which means that it is easier to start a company. The financial requirements to not become a’ public charge’ and the ‘ability to pay employees’ can be kept the same.

The Takeaway

Our economy needs jobs that pay a living wage. Our population is aging. The majority of H1B applicants were in the 25 to 39 age range, workers with long employable lives who can pay into our economy.

By Nalini S. Mahadevan

Contact info: nsm@mlolaw.us

Not meant as legal advice!

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