H-1B Visa Cap Reached in Five Days

shutterstock_101132716U.S. Citizenship and Immigration Services (USCIS) announced on Friday, April 5, just five days after the H-1B high-skill “visa race” began, that they had received more applications than could be approved under the cap of 65,000 for fiscal year 2014. Additionally, USCIS stated they had received more than 20,000 H-1B petitions on behalf of individuals who are exempt from the cap. As such, USCIS will no longer be accepting additional H-1B petitions for fiscal year 2014. At this point, USCIS will use a random selection “lottery” process to allocate the 65,000 visas from the applications received through April 5.

The 65,000 cap was set in 1990 and has since created an untenable situation that may have made sense two decades ago, but today is placing a stranglehold on business and innovation. The fact that the cap was reached means that any businesses that might need to hire high-skilled employees from outside the United States will have to wait an entire year before they can apply again on April 1, 2014. This also means that any job opportunities that emerge in the coming months because of growth, development, and innovation, which could necessitate hiring specific individuals who may only be found through high-skill immigration channels, will go unfilled. The net result is that our current immigration system does not allow businesses to hire the talent they need to remain competitive in a timely manner. This is an unsustainable situation that is bad for business and does not meet market demands that often change much more quickly than a yearly cycle, particularly in high-tech and innovation industries. To add insult to injury, the current H-1B petitions that USCIS has received for fiscal year 2014 will now go through a lottery process to determine actual visa allocation. For those who have applied, the severity of need, the value of innovation being pursued, or other important factors will play no role in determining whether their application will be approved. At a time when our economy is desperate for new catalysts for job growth, Friday’s news was evidence that our current immigration system isn’t up to the challenge.

In the current debate on comprehensive immigration reform, there is no question that high-skilled immigration reforms will be on the agenda. Thus far, however, the primary focus has been on permanent immigration rather than on temporary immigration. There has been a lot of talk about “stapling green cards” to the diplomas of foreign born graduates of U.S. universities, eliminating the per-country limits on permanent immigration applications, and other reforms to permanent channels of immigration. These are critically important reforms, but they are not a panacea for the many problems we face in the global battle for talent. Many of the talented people being recruited by U.S. companies didn’t graduate from a U.S. university, and not every job opening or job seeker is looking for a permanent position.

As the comprehensive immigration reform conversations continue, the need to improve temporary immigration categories will be a critical part of the equation. These visas play an important role in addressing a range of business realities, not the least of which is allowing employers and employees to move more quickly than could ever be possible in the process of applying for permanent residence.

To be sure, the current high-skilled temporary immigration programs aren’t perfect. Instances of abuse must be taken seriously, and our permanent and temporary immigration categories can and should be strengthened to guard against fraud and to protect workers and their families. But to deny the important role these policies play in a global economy and labor market is a grave mistake. While other countries spend vast sums trying to attract and retain high-skilled workers, global competition is only becoming fiercer. If we squander this opportunity to reform our immigration system in a way that benefits everyone – workers, families, employers, and citizens – we are jeopardizing a competitive advantage that has been critical to establishing ourselves as the world leader in innovation and entrepreneurship.

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