Another Year, Another Lottery Likely for High-Skill Visas

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By Laura D. Francis

Companies seeking temporary visas for skilled foreign workers are going to have just as hard a time this year as in the past few years.

In fact, it could be even harder.

We’re seeing “considerably more” H-1B petitions this year, Susan Cohen, chair of the immigration practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, told Bloomberg BNA March 30. So the overall volume of petitions is likely to be at least the same as last year, she said.

April 3 marks the first day employers can petition for H-1B visas for fiscal year 2018, which starts Oct. 1, 2017. There are 65,000 visas available each fiscal year, with an additional 20,000 for workers with advanced degrees.

But the number of petitions has outstripped the number of visas in each year since 2013, prompting a lottery to determine whose petitions get processed. And there’s no sign that it’s slowing down.

Surge May Outpace Scale-Back

There are some industries that are scaling back their petitions, but that’s likely to be matched by a surge from others that weren’t able to get the visas in prior years, Amy Cococcia, a partner at Fragomen, Del Rey, Bernsen & Loewy in New York, told Bloomberg BNA March 30.

Information technology staffing companies like Infosys Ltd. will be filing fewer petitions this year, Marketa Lindt, a partner at Sidley Austin in Chicago, told Bloomberg BNA March 31.

These types of employers have come under fire recently with the emergence of high-profile cases of U.S. workers being replaced by H-1B workers employed by staffing agencies. That’s led to bills in Congress that take aim at the agencies, some even going so far as limiting their ability to file additional petitions.

But that hasn’t stopped other companies from continuing to pursue the visas. “We’ll need to see how these push and pull factors” affect overall petition numbers this year, said Lindt, who serves as second vice president of the American Immigration Lawyers Association.

H-1Bs Needed for STEM

“The H-1B visa is a very valuable tool” for employers to “access talent that fills critical skills gaps,” Rebecca Peters, director of government affairs at the Council for Global Immigration, told Bloomberg BNA March 31. That’s particularly true in science, technology, engineering and mathematics.

“Those STEM fields are critical for employers to have access to” the best workers, she said.

“There still is demand for H-1B visas, and that shows that there still are needs that need to be filled,” said Justin Storch, the CFGI’s manager of agency liaison. “The H-1B visa remains a vital visa that allows employers to access the talent they need,” he told Bloomberg BNA.

The CFGI advocates for an immigration overhaul on behalf of large, multinational companies.

Trump Effect?

President Donald Trump during his campaign called for changes to the H-1B program, arguing that wages need to be increased so that it’s not used as a source of cheap foreign labor.

But that campaign talk hasn’t seemed to have an effect on employers’ willingness to seek the visas, at least this year.

“We are seeing more of a chilling effect on short-term business travel but anticipate that more companies want the security of the H-1B visa for their employees and would prefer to proceed this year in anticipation of upcoming changes to the H-1B visa program,” Cococcia said.

Depending on what changes the president proposes, companies may think differently in the future, Cohen said. But so far, “nothing’s been done yet,” said Cohen, who is based in Mintz Levin’s Boston office.

Different Tactics

Although there hasn’t been an impact on overall willingness to file H-1B petitions, “we’re seeing a few different things this year” because of the “political climate,” Lindt said.

Trump’s travel ban and other executive orders, his comments on H-1Bs and “general anti-immigrant sentiment” has “put a lot of employers into the mind frame of looking for as many immigration options as possible,” Lindt said.

That includes applying for H-1Bs earlier in a worker’s career than usual, even when they’re still in school, she said.

And with Trump’s talk of renegotiating trade deals such as the North American Free Trade Agreement, employers are turning to H-1Bs instead of visas that derive from those agreements, such as TN visas for professionals from Canada and Mexico, Lindt said.

Employers also are getting a jump on the green card process earlier in their workers’ careers than they might have otherwise, she said.

Seeking ‘Most Stable Status.’

All of these efforts are geared toward getting “most stable status that they can” for their critical workers, Lindt said.

“It’s still the case, and it always will be the case, that U.S. employers would prefer to hire U.S. workers if they can find them,” Cohen said.

“They don’t go out looking” for someone to sponsor for a visa, she said.

“We need as many good, qualified Americans as we can in the STEM fields,” but “it is a global economy” and “we’ll continue over time to need a global workforce,” CFGI’s Storch said.

Need ‘Fallback Plan.’

A sizable portion of employers aren’t going to get an H-1B, just by virtue of supply and demand. But what happens next “depends on the employer,” Cohen said.

“You have to have a fallback plan,” she said.

Large multinational companies may transfer that worker to an overseas office, she said. That employee could work abroad for at least a year and then get transferred to the U.S. later on an L-1 intracompany transferee visa, she said.

A company also might determine if the work can be done remotely, from the worker’s home country or another location, Cohen said.

“Advanced planning is very important to assure the employees that the employer is doing everything it can” to keep them in the country, Lindt said. “There may be other creative solutions” that need to be explored, she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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