The annual cap on H-1B work visas for foreign professionals, which was reached more than one year early for fiscal 2006 that begins Oct. 1, hurts Georgia’s business community and the global competitiveness of U.S. industry, said Daryl Buffenstein, immigration attorney in Paul, Hastings, Janofsky & Walker LLP’s Atlanta office.
The annual cap of 65,000 H-1B visas was reached on Aug. 10, more than one year in advance of the 2006 fiscal year for which those visas are issued to foreign professionals working temporarily in U.S. companies. H-1B petitions that did not reach one of the U.S. Citizenship and Immigration Services service centers by Aug. 10 will be rejected and returned to the petitioners.
An extra 20,000 H-1B visas have been allocated beyond the 65,000 cap for foreign nationals who have earned a Master’s degree from an American university. But some 8,000 of these extra visas have already been reserved for 2006, according to Mr. Buffenstein.
“This handcuffs the competitive advantage of the United States,” Mr. Buffenstein told GlobalAtlanta, just hours after learning the cap had been reached for H-1B visa applicants expecting to work in U.S. companies from Oct. 1 through Sept. 30, 2006.
The cap may restrict a Georgia company’s entrance into a new foreign market for an entire year because now it cannot hire a foreign national whose experience in that country may have been crucial, he said. “These caps are caps on productivity,” he asserted.
Mr. Buffenstein explained that 65,000 H-1B visas are issued each year, which may or may not be sufficient for the number of foreign professionals needed for industries here, including information technology, medicine, law, engineering, education and others.
Even if 65,000 is enough or too many for a given year, the real problem, he said, is that if visas are not used, they are not permitted to roll over to the next year. Since the cap was introduced in 2000, some 250,000 H-1B visas have gone unused because of this regulation, he added.
“Business does not fall neatly into fiscal years because companies simply cannot always hire the employees they need on such a strict timeline,” Mr. Buffenstein said. “The business community is being cheated.”
He added that he is part of a group called the Global Personnel Alliance that is leading efforts to lobby Congress to make changes to current H-1B regulations.
The alliance is an organization of multinational corporations and business chambers pushing leaders in Washington on such immigration issues that it believes stifle business productivity.
The alliance recognizes that the H-1B issue represents “a huge risk but a huge opportunity for the business community” because it will likely become mixed up with current debates on illegal immigration, Mr. Buffenstein said.
Major immigration bills introduced in the Senate recently, like the McCain-Kennedy bill that would create a temporary worker program and the Kyl-Cornyn bill that calls for tougher border security provisions, are longer-term solutions, Mr. Buffenstein said. But amending the H-1B regulations is a short-term fix that could help companies right away, he added.
Last year, the 65,000 cap was reached on Oct. 1. This year was the first time since 1990 that the cap was reached prior to the beginning of the fiscal year for which the visas are to be used.
The cap had been raised in 2003 to 195,000 to provide foreign technology experts during the technology boom, but that limit was lowered to 65,000 in October 2003. Previous years’ caps were 78,000 for 2002; 79,000 for 2001 and 116,000 for 2000.
The 65,000 limit on H-1B visas is for new employment each year. This does not apply to petitions for extensions, second jobs or changes in employers for existing H-1B workers. The official cap this year for new workers is 58,200 because 6,800 visas are set aside each year for what are called H-1B1 visas for the U.S.-Chile and U.S.-Singapore free trade agreements. If all 6,800 H-1B1 visas are not used, those numbers will go back into the general pool but cannot be made available until the start of the fiscal year 2007 beginning Oct. 1, 2006.
Contact Mr. Buffenstein for more information on the H-1B regulations or the Global Personnel Alliance at (404) 815-2232 or darylbuffenstein@paulhastings.com