H-1B Visa Lawyer Asks: Will We Reach FY 2011 H-1B Visa Cap on April 1, 2010?

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This is somewhat of an interesting question. As an immigration attorney I cannot but think about the experience that the nation will face this year. Will the nation actually consume all H-1b visas this federal fiscal year on April 1, 2010?

We know that the H-1B visa cap for Fiscal Year 2010 was consumed on December 21, 2009. Unlike prior years where the H-1b visa cap was consumed in its entirety by April 1, last year’s experience raised eyebrows. It does not take a brain surgeon to realize that the H-1b visa cap experience of 2009 is directly related to the sharp decline of the US economy and the increase in unemployment figures reaching double digits in the same year.

A recent article appeared in the Chronicle of Higher Education entitled: “Number of Foreign Students in U.S. Hit a New High Last Year,” stated that the population of foreign students in the US may have risen by an additional 671,000 students in the 2008-2009 academic year. Some of these students naturally attended Master ‘s Degree programs and will be poised to graduate in the 2010-2011 academic year. Since the law only requires H-1B visa positions to require a bachelor’s degree for entrance into the particular position, and for the alien to possess the same, it is quite conceivable that some of these Master’s Degree seekers maybe may have a competitive advantage as they seek employment in early 2010. If we pick a conservative number, say 10% of the additional student population of foreign-born students and if we determine that this 10% or roughly 67,100 will be graduating in June 2010, it follows that the same number are excellent H-1B visa candidates seeking employment early in the year.

This is a purely logical and mathematical argument and does not take into account the economic realities of the employment market place in the United States. It is not a secret that foreign workers contribute positively in every segment of the US industry as reported by the US Census Bureau and fill a much-needed demand in the technical market where H-1b visa workers normally work. If the number prediction quiz that we just went through holds true in 2010, then conservatively, we could have sufficient foreign workers on whose behalf H-1b visa petitions are filed, and whose petitions may exceed the available 65,000 cap H-1b visa on April 1, 2010.

One factor that we did not take into account is whether the US economy will be able to absorb 67,100 additional skilled workers within the next 60 days. One firm reports that the question should not be asked whether there will be additional technical jobs in 2010, but whether employers will be focusing more on finding workers to fill certain skill sets in 2010 than creating new positions. That is to say, with the abundance of available highly technical human resources, it is logical to suggest that employers are likely to look for better and brighter workers than “new workers.” Foote Research, LLC, a research foundation that continuously predicts and monitors workforce trends, IT and business executive behavior at 1,980 North American employers, stated that “Investments focused more on skills than jobs in 2010.” Foote Research argues that this may constitute a shift in the employment behavioral patterns of IT employers in 2010 leading to an “exchange” in the workforce not necessarily in the creation of “new jobs.” If this holds true, better qualified and trained foreign labor force will be more apt to fill these positions in the next few months.

If this deductive argument holds true, it is likely that the increase in the enrollment of foreign students felt in 2008 and the evolving employment behavior and practices of employers expected to take place in 2010, that the USCIS may be faced with an avalanche of new H-1b visa petitions on April 1, 2010. Who knows, the cap may very well be met on the same day.

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