No Way to Run a Visa Program


The year's U.S. visas for skilled workers were snapped up in one day, leaving out worthwhile applicants. Such immigration policy is damaging

On Apr. 2, the gates opened for applications for the H-1B visas that high-skill workers from other countries use to come to the U.S. By early afternoon one day later, all 65,000 of the prized visas for the entire fiscal year 2008 were claimed. This is a travesty that deserves immediate government attention.

The U.S. Citizenship & Immigration Service (USCIS) was buried by more than 150,000 applications during this one-day frenzy. Thousands more arriving after Apr. 3 will be unceremoniously turned away. The Federal government must be giving out something of great value.

The H-1B visa allows a qualified professional to work for a U.S. employer. Congress has set a limit or cap on the number of these visas available annually (see BusinessWeek.com, 2/8/07, "Work Visas May Work Against the U.S."). Under current law, some 65,000 visas are available for individuals with bachelor's degrees or more advanced degrees each fiscal year, and another 20,000 for those with master's-level degrees from a U.S. institution of higher learning.

Arbitrary Limits

Employers may file six months in advance of the beginning of the Oct. 1 fiscal year. That makes Apr. 1 the key date, but since it fell on a Sunday, Apr. 2 launched the gold rush to secure visas for employees.

How will the USCIS decide which of the 150,000 applications will be counted against the cap? The department says it will use a "random selection process"—in essence a lottery—to determine which potential employees will be permitted to work for their prospective employers. The unlucky organizations who don't make the cut now need to wait until Apr. 1, 2008, to reapply to employ these needed people.

How bizarre that employment in the U.S. in skilled professional positions would be determined not by supply or demand but by a lottery with purely arbitrary limits. The workers who would have filled these jobs are no slouches. All have bachelor's degrees or the equivalent, and are trying to comply with the system legally. Every one of their potential employers would have paid these potential workers at or above the prevailing wage, as well as forking over a $500 anti-fraud fee to the government and up to $3,190 in processing fees.

Driven from U.S. Shores

Perhaps the most disheartening stories are those of the foreign students who are graduating from U. S. universities this spring. Because all of the H-1B visas have been claimed, they won't have the opportunity to begin their promising careers in the U.S., with perfectly willing employees.

They may have wanted to remain in the U.S., build their professional abilities, and contribute to the U.S. economy. But due to the lack of available legal status, they are being forced to consider going elsewhere and may ultimately work in countries that compete with ours. This is their reward after spending thousands of dollars on tuition at American schools.

This is hardly the way for our nation to be competitive in attracting the best and the brightest to the U.S. The majesty of the law chases them away.

Whitehill is a partner in the Pittsburgh-based law firm Fox Rothschild LLP and chair of its immigration group.

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