Restrictions Related to Stimulus and Filing of H-1B Fees for Fiscal Year 2010
The Employment of American Workers Act (EAWA), recently signed by President Barack Obama, places severe restrictions on prospective H-1B employers who have received Troubled Asset Relief Program (TARP) funds. The Act makes such employers “H-1B dependent employers,” requiring them to conduct certifications that include efforts to recruit U.S. workers, offer nondiscriminatory wages to H-1B nonimmigrants and U.S. workers, and not displace workers. Americans.
There is widespread resentment in the H-1B community, both employers and employees, on this issue. We have been asked whether such restrictions on recipients of stimulus funds would affect the number of H-1B applications for fiscal year 2010, which opens on April 1, 2009. We believe the impact would be minimal for the reason that H-1B workers make up less than one-tenth of one percent of the US workforce, including those employed in the banking and financial sectors, which are the main beneficiaries of the stimulus package.
H-1B is a nonimmigrant visa classification granted by the US Citizenship and Immigration Services (USCIS) to foreign nationals to be employed in the US in “specialty occupations” that require a minimum of bachelor’s degree or equivalent. The current worldwide quota of H-1B visas is 65,000 per year. Of these, 6,800 are reserved for nationals of Singapore and Chile. In addition to this worldwide quota, there is a special quota of 20,000 visas available to holders of advanced degrees from US graduate schools. In addition, certain employers in academic and research areas are exempt from this quota. The fiscal year begins on October 1 and petitions can be filed up to six months before the start of employment, so filing opens on April 1. If enough petitions are received to trigger the 5-business-day filing rule, as happened in 2008, filing will end on April 7. Otherwise, USCIS will continue to accept petitions until the cap is reached.
Last year, 163,000 petitions were filed in the first five days of filing, including 31,200 against the US Advanced Title category. As a result, a random drawing was held, as was done in 2007, to determine the final recipients of the coveted visas.
In the last couple of years, immigration law firms had experienced a mad rush ahead of the April 1 filing date. Obviously, this year that race is absent mainly due to the downturn in the economy. So the general feeling is that this year there may not be as many petitions filed in the first days of filing as in previous years due to the recession and widespread layoffs. But even if the number of petitions filed is only half of last year’s total, the quota would still be capped. Also, when it comes to the US advanced degree quota cap, there are thousands of foreign students in the US whose applications were not chosen in the lottery last year. A large percentage of them would be candidates again this time, as well as later graduates, putting more demand on that category.
Also, we have seen a sudden increase in new queries in the last week or so. Additionally, most of our H-1B employer clients are looking beyond the current economic downturn. They are confident that things will change by the time the new H-1B employment period begins on October 1, 2009. Therefore, we continue to urge our clients to file FY 2010 quota-subject H-1B petitions. on April 1 or as soon as possible.
Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.
Copyright: The Law Offices of Morley J. Nair, Inc.