VIDEO: St. Louis Employment Visa Attorney Jim Hacking Explains How the H1B Visa Cap Hurts America

How is the cap on H-1B employment visas screwing America?

Hi, I’m Jim Hacking, immigration attorney practicing law here in St. Louis, Missouri. The visa that’s used to allow employers to have foreign workers work for them for up to six years is called an H-1B visa. There is a cap on H1-B visas that Congress allows the Immigration Service to issue every year. That cap is 65,000 visas. This is a real problem for many employers and here’s why.

Because only 65,000 visas are available, and that means that’s the most number of people that can come to the United States and work on an employment visa. There is a lottery every year that’s held to allow employers the chance to have a foreign worker work here. Last year the Immigration Service received almost twice as many applications for H-1B visas than it did have visas available.

Now this means that employers spend a ton of money on immigration fees, immigration attorneys, and they do a lot of work to get the application on file. There’s a whole series of filings that have to be done, both with the Department of Labor and the Immigration Service that must be done before you can file an H-1B.

Let me describe the process a little bit, because it’s really complicated and it really shows how much work goes into one of these applications. If an employer has a foreign worker that they want to sponsor for an H-1B, the first thing they have to do is ascertain what that person’s prevailing wage is. An employer has to pay a foreign worker the prevailing wage. The Department of Labor has a website that allows you to look that up. After you determine the prevailing wage, you then file a form called the Labor Condition Application with the Department of Labor. That takes a couple weeks for them to process it.

Once that’s done, then there’s a rush to file everyone’s applications by April 1st. Because the Immigration Service’s fiscal year starts on October 1st every year, the visas run from October 1st to September 30th, three years later. You have to get your applications in six months ahead of time. There’s always a mad rush in the last parts of March to get these thing on file. Because if you don’t get there by the 1st of April your application will not be included in the lottery and you might as well not even have sent it.

Last year like I said, they received 120,000 of these and almost half of them went in the reject pile, just because there were not enough visas available. That’s a real problem. Employers need certainty in hiring. Employers need to know that the person that they want to hire is going to be able to work there.

Now a lot of people will say, the H-1B system protects American workers, but it really doesn’t. If an employer is willing to go to the extra lengths and extra costs that it takes to sponsor an employee from overseas, then that demonstrates to me that there really is a need for these workers, because the cost is around $7,000, $7,500 if you do it right. Above and beyond that, all the work that the employer has to do and all the rigmarole that the Immigration Service makes them go through, employers aren’t  going to do that for just any old sad sack employee. They’re really only going to it if it’s an A+ candidate.

We really urge to contact Congress to ask them as part of Comprehensive Immigration Reform to inflate the number of visas available. The 65,000 number is an arbitrary number that was picked out of whole cloth. There’s no real reason or definite reason why that has to be the number. Congress operates under this fiction that 65,000 is the magic number; when in fact employers need a lot more.

Now if the economy is bad, as we saw five or six years ago, these visas weren’t all being used. It’s a supply and demand situation where an employer self-selects out if they don’t need the employees and then the visas aren’t going to be as necessary. It just doesn’t make good sense for the American public and for American employers to have this cap at 65,000.

We really hope that if Comprehensive Immigration Reform passes that the number of employment visas available for these foreign workers increases. So that we can all benefit from the insight, the intelligence and the hard work that immigrants from overseas bring to the United States.

If you have any questions about this or if you’d like to get involved in the Immigration Reform Movement, pick up the phone and give us a call 314-961-8200. Or you can e-mail me, jim@hackinglawpractice.com. Thanks and have a good day.