By Chris Fuchs

Most think of April as the end of tax filing season, but the beginning of the month also marks the start of a period when the federal government accepts petitions for a limited number of temporary visas granted to foreign specialty workers, the majority from India, in such fields as information technology and engineering.

The H-1B, as it is called, has become the primary method by which employers in the United States hire high-skilled overseas talent, according to the Pew Research Center. Amazon and Microsoft led the way with the most initial H-1B approvals for fiscal year 2018, figures from U.S. Citizenship and Immigration Services show.

While supporters of the program argue that it brings in foreign professionals to fill a job gap and even helps the nation’s economy by creating positions for people born in the U.S., critics say it promotes outsourcing and gives away American jobs to lower-paid workers.

WHAT IS THE H-1B?

Created in 1990, the H-1B program allows U.S. companies to sponsor nonimmigrant visas to temporarily employ foreign workers with at least a bachelor’s degree in specialty areas such as engineering, computer programming and science, as well as health care and education.

The government sets an annual cap of 85,000 H-1B visas, which includes 20,000 for those with U.S. advanced degrees. In recent years, the limit has been reached just days after the start of the filing period, according to the nonprofit American Immigration Council.

Before submitting a petition to the USCIS, companies must take steps to ensure U.S. workers are not harmed by employing foreign workers, the council explains in a fact sheet.

That includes notifying existing employees that they intend to hire H-1Bs and affirming that doing so will not negatively impact wages and working conditions of similarly employed U.S. workers.

For fiscal Year 2018, which ended Sept. 30 of that year, the USCIS received close to 420,000 petitions for initial and continuing H-1B employment, according to agency data. Around 74 percent of those came from people born in India and 11 percent in China.

Employers must pay all fees and costs associated with the H-1B process, according to William Stock, an immigration attorney and founding member of Klasko Immigration Law Partners, LLP.

Stock said the USCIS charges $460 to process the application and also collects three additional fees: $1,500 to fund U.S. worker training programs; $500 for anti-fraud efforts; and an additional $4,000 from employers whose workforce is more than 50 percent sponsored employees.

Legal fees, Stock added, could be hundreds or thousands of dollars for each petition.

HOW ARE H-1Bs DISTRIBUTED?

With so many petitions subject to the government cap submitted so quickly — the USCIS received 190,098 within just five days during the filing period last April — a random lottery is used to decide who gets the visas, which are typically good for up to three years.

After that, H-1Bs can be extended for another three years, meaning that a sponsored worker can hold the status for a total of six years, whether with one company or several, Stock said.

This year, the USCIS will switch the order in which it runs its lottery, a move that agency director L. Francis Cissna said in January will further President Donald Trump’s “goal of improving our immigration system.”

Under this change, all petitions will first vie for the 65,000 available regular cap visas, Stock explained. Petitions not chosen in the first round for people with a U.S. master’s degree or higher will then be afforded a second chance under the 20,000 slots put aside for advanced degrees.

The USCIS estimates this will increase the number of U.S. advanced-degree holders chosen in the lottery by up to 16 percent, or 5,340 workers.

The H-1B cap does not apply to certain employers, including institutions of higher education and governmental or nonprofit research organizations.

Also exempt are H-1B holders renewing their visa or changing employers.

A 2018 report from the Migration Policy Institute, a think tank, found most H-1B visas were actually awarded outside the cap. An average of 212,000 such petitions were approved annually in the last five years. The institute concluded that the increased demand for uncapped H-1Bs stemmed largely from delays faced by employers getting green cards for these workers.

While H-1B visas are typically valid for a maximum of six years, Stock said an exception is made if the green-card process for workers sponsored by their employer cannot be completed within that period because of governmental processing delays or green card quotas.

H-1B workers from India wait on average nine to 11 years for a green card depending on the category, according to the Migration Policy Institute.

WHY ARE H-1Bs CONTROVERSIAL?

Technology firms say they have used the H-1B program to hire highly skilled, well-paid foreign workers in short supply. But critics say outsourcing outfits also use it to bring in overseas contractors to U.S. companies that are looking to cut information technology costs.

The visa program garnered attention from Trump during his campaign following reports of U.S. tech workers being terminated at Southern California Edison, a utility, and The Walt Disney Company and being replaced with cheaper H-1B holders. Both companies have said they paid foreign contractors comparably with local staffers, according to Reuters.

Trump, in his inaugural speech, pledged to bring back lost jobs and "rebuild our country with American hands and American labor."

Also under fire is a 2015 Obama-era rule that grants work permission to the spouses of H-1B visa recipients who are on track for green cards.

The Department of Homeland Security in February delivered a proposed regulation to the White House that would end this employment authorization for certain spouses who hold H-4 visas.

According to the USCIS, there have been close to 91,000 initial approved applications for H-4 work authorization since the original rule was created.

Proponents argue that the Obama rule helps alleviate financial pressures of H-1B families that would otherwise have to manage on a single income, a move that can help retain overseas talent in the U.S.

But it has also drawn criticism, including from Save Jobs USA, a group comprised of laid-off computer workers in California whose jobs were filled by programmers from India on H-1B visas.

Save Jobs USA filed a federal lawsuit in 2015 to block the H-4 rule after it was announced. That case has been pending before the U.S. Court of Appeals for the District of Columbia Circuit.

WHAT DOES THE FUTURE HOLD FOR H-1Bs?

Over the years, federal lawmakers on both sides of the aisle have proposed legislation to overhaul the visa program.

Among them, former Rep. Darrell Issa, R-Calif., reintroduced a bill in early 2017 that called for boosting the H-1B annual salary requirement from $60,000 to $100,000.

Rep. Zoe Lofgren, D-Calif., introduced her own legislation that would award visas according to which employers offer the highest salary. It also called for removing a country cap on employment-based immigrant visas and would apportion 20 percent of H-1B visas annually for small businesses or startups.

And a bill from Sens. Chuck Grassley, R-Iowa, and Dick Durbin, D-Ill., sought to ensure American workers are not undercut by cheaper labor.

For H-1B visas, it would have established a system that gives preference to foreign students educated in the U.S., to advanced degree holders, to those paid a high wage, and to workers with valuable skills.

The bill also would have gone after outsourcing companies that use visa programs to temporarily bring over large numbers of foreign workers for training, only to send them back home to perform the same job.

Meanwhile, the Trump administration itself has targeted aspects of the program.

Besides the proposed rule to end employment authorization for spouses of H-1B recipients, the USCIS instructed its officers in 2017 to review and scrutinize visa renewals for foreign workers like first-time applications, a move that one expert said could induce U.S. companies to hire Americans.

That same year, as the federal government began accepting H-1B applications for fiscal Year 2018, the USCIS announced it was stepping up efforts to ferret out fraud in the program, while the Justice Department warned employers petitioning for the visas not to discriminate against U.S workers.

The USCIS' figures show that H-1B approvals of initial applications dropped from 92.6 percent in fiscal Year 2017 to 84.5 percent for fiscal Year 2018, which ended Sept. 30.

Between October and December 2018, the first three months of fiscal Year 2019, the approval rate was even lower, at 75.4 percent.

Meanwhile, the number of completed cases for which requests for evidence, known as RFEs, were made shot up to 150,580 in fiscal Year 2018, compared to 86,187 in the fiscal year before — an almost 75 percent increase, the USCIS data show.

And between October and December 2018, the first three months of fiscal Year 2019, three in five completed cases received requests for evidence.

As for future legislation, whether and how the H-1B program will be addressed remains to be seen.

“Right now, I think everyone is holding their powder dry and is waiting to see if some larger deal on immigration comes through,” Stock said.

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