H-1B Specialty Workers Cap Season Open

April 1rst marks the beginning of the H-1B cap season.  The H-1B visa is a temporary visa available for U.S. companies seeking to hire a foreign worker for a position that qualifies as a specialty worker.  In general, specialty workers are those positions which require a bachelor's degree or higher.

Every year, 65,000 visas are available for specialty workers.  An additional 20,000 visas are available for specialty workers who hold a masters degree or higher from a U.S. institution.

Applications for the H-1B visas can be filed up to six months before the beginning of the fiscal year.  That means that the first day that H-1B visa petitions can be filed is April 1 for visas that will be valid starting on October 1.

A few years ago, there were more petitions filed during the first week of April than there were visas available.  However, for the past few years, visas have remained available for a few months after April 1.  With the economy showing signs of bouncing back, there is a possibility that all of the available visas will be taken in a short period of time.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimigrationlaw.com

Movement on Immigration Reform Expected After Easter

The President predicted that immigration reform could pass by the end of the summer.  The President expected an immigration reform bill to be ready after the Easter break, and New York Senator Chuck Schumer confirmed his belief that a birpartisan group of Senators called the Group of Eight was "90 percent" done with drafting the bill.

The bill is expected to include stronger border security measures, a pathway to citizenship for undocumented aliens already in the country, an expansion of visas available to high-tech workers, and some form of a guest worker program.  Homeland Security Secretary Janet Napolitano stated her expectation that any new reforms would be fee-based so that the costs would not be borne by the taxpayers.  Addressing those aliens present in the country without legal status, Napolitano stated, "They need to get right with the law -- they did break the law."

One big issue that could slow the pace of reform was disagreement over the guest worker program.  Despite this issue, the President stated that he saw "enormous progress over the last month and a half" between Republicans and Democrats, adding that both sides "have been very serious about the negotiations."

The Christian Science Monitor has also reported that border security could be an issue that impedes progress on reform.

Regarding the pace of reform, some Republicans Senators have urged Senator Patrick Leahy, Chiar of the Committee on the Judiciary, not to rush reform without proper debate.  Leahy responded that he intended "to proceed to comprehensive immigration reform with all deliberate speed."

Senator John McCain, however, a member of the Group of Eight, would not commit to a timetable, noting that there were still major points of contention.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Congress to Increase H-1B Caps?

A bill, called the Immigration Innovation Act or I2, (I-Squared) has been introduced in Congress in an effort to expand the number of foreign workers who can obtain temporary visas to work for U.S. companies.  The bill would expand the number of H-1B visas available each year on a sliding scale, depending on the demand by U.S. empoyers for such workers.

The H-1B visa is open to workers to be employed in specialty occupations.  A specialty occupation is defined as an occupation that requires a bachelor's degree, or its equivalent, or higher as the normal entry requirement for the position.

Each year, there are 65,000 temporary visas available for specialty workers.  Another 20,000 visas are set aside specifically for workers who hold a U.S. master's degree.  The temporary visas can eventually lead to permanent residency.  They are often used for U.S. companies seeking to fill high-tech positions, although any job which requires a bachelor's degree may be able to qualify for the basis of an H-1B visa.

U.S. employers may apply for the H-1B visas up to six months before the visas are to take effect.  The visas become available at the beginning of the fiscal year, or October 1.  This means that an employer may submit an application as early as April 1.  In times of an expanding economy, it is not uncommon for the cap of all 85,000 visas to to be met on the first day of filing.

If passed, I2 would raise the number of H-1B visas available each year from 65,000 to 115,000. More H-1B visas could be made available, depending on the demand.  If the cap is met within the first 45 days of when petitions can be filed, another 20,000 wold be made available.  If the cap is met within the first 60 days, then another 15,000 would be made available.  If the cap is met within the first 90 days, then another 10,000 visas would be made available.  If the cap is met again by the 275th day on which petitions can be filed, another 5,000 visas would be made available.  Under the proposed legislation, the cap on foreign workers holding U.S. master's degrees would be eliminated.

This bill has received bi-partisan support, as it is co-sponsored by such Republicans as Orrin Hatch and Marco Rubio, and such Democrats as Bill Nelson and Mark Warner.

However, passage of the bill is not assured.  Senators Dick Durbin and Charles Grassley, for example, have been critical of the H-1B program, arguing that it permits U.S. employers to bypass hiring available U.S. workers.  U.S. technology companies, by contrast, have been pushing for the expansion of available H-1B visas.

The President has promised to press for comprehensive immigration reform this year.  The Obama Administration's strategy has been to push through a single bill addressing various immigration issues.  By contrast, the Republicans, many of whom believe it critical to press for reform in the aftermath of the 2012 election defeat, wish to press forward with many bills, each addressing a discrete immigration issue.  The goal for Republicans appears to be to avoid a show-down within the party over anything perceived by the far-right to be amnesty.  Whether this bill passes, or is absorbed by a larger, more comprehensive bill, remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

President to Press for Immigration Reform Early in the Next Congress

According to the Los Angeles Times, President Obama is preparing to press for comprehensive immigration early in the next Congress.  The plan calls for an all-out blitz as soon as talks over the country's fiscal problems dies down.  Reportedly, the campaign to press for immigration reform will focus on convincing Americans that reform will provide benefits in such areas as education, health care, business and safety.

The exact details of the President's proposal are still evolving.  Reportedly, the proposal will include a pathway to citizenship for those undocumented aliens already present in the United States, increased border security, increased penalties for employers who hire aliens unauthorized to work in the United States, and increased opportunities to hire foreign workers.

According to the Times, some Democrats believe that there is a narrow window to press for reform.  The closer it gets to the next congressional elections, the more likely members of Congress will be reluctant to vote in favor of a bill that has political risks.

Republicans, however, appear to be in favor of slower approach, tackling one issue at a time before addressing whether there should be a pathway to citizenship.  Florida Senator Marco Rubio has stated, "Portions of immigration reform can be dealt with quicker than others."  Congress, for example, could first approach expanding opportunities for science and technology workers and addressing undocumented aliens who were brought here as children before the more controversial subjects.

Recently, however, a bill to expand the number of visas available to science, technology, engineering and math (STEM) workers stalled in the Senate after being passed by the House.  The fight over the bill highlighted a key difference of opinions between Republicans and Democrats over the shape of reform.  Specifically, Republicans appear to believe that in order for there to be more visas available for STEM workers, over visa categories have to be eliminated.  Democrats, by contrast, do not view reform as a zero-sum game, seeing no need to eliminate some visas in order to expand the availability of others.

One key concern for Republicans is whether they would be sacrificing their political future by supporting immigration reform now.  Specifically, conservatives, such as Rush Limbaugh, have argued that if Republicans support a pathway to citizenship, they would simply be expanding the number of Democratic voters in the future.  This is a fear that can be seen by careful analysis of the Achieve Act currently pending  in the Senate.

The Achieve Act, sponsored by Republicans Kaye Bailey Hutchison, John Kyl and John McCain, is the Republicans' response to the DREAM Act.  It would create a way for some undocumented aliens brought to this country as children to have legal status.  However, the bill would create a non-immigrant visa for such aliens, which would not itself lead to citizenship.  Thus, beneficiaries under the Achieve Act would not automatically be on the path to obtain the right to vote.

While this appears to be the most positive atmosphere for immigration reform since President Bush attempted to press for a guest worker program, the battle will not be easy.  Competing interests will need to be addressed, and in some instances overcome, if the press for immigration reform is to be successful.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Political Wrangling Over Immigration Reform Begins

In the aftermath of the 2012 presidential election, some Republicans began pressing to change the party's stance on immigration reform as a way to change the party's image with Latino voters.  Over 70% of Latinos voted for President Obama, and was seen by many as a key reason for the President's victory.

Comprehensive immigration reform will take time and negotiations.  Some Republicans eager to start changing the party's image have introduced smaller proposals in Congress now, during the lame duck session, in an effort to give the GOP some credibility.

One such proposal is the expansion of the number of permanent residency visas available for workers in science, technology, engineering and math, so-called STEM workers.  I have already discussed the arduous process of hiring foreign-born STEM workers and applying for their visas on this blog.

While Republicans may not be completely unified on comprehensive immigration reform, STEM worker visas is one area where the GOP does have a degree of unity.  One Republican proposal on STEM worker visas was brought to a vote in September of this year.  The plan would have increased the number of visas available for STEM workers by 50,000, while eliminating the diversity visa program.  The diversity visa program, also known as the visa lottery, makes 50,000 visas available to people born in areas of the world that have sent the fewest immigrants to the United States in the past five years.

The GOP bill was brought to the floor in September under the suspension calendar, and needed a two-thirds majority to pass in the House of Representatives.  While the proposal failed to gain the required support in September, the bill to expand the number of STEM visas came to the floor on the regular calendar, and passed the House on November 30, 2012.  The bill passed, and was introduced in the Senate.

In the Senate, Republican John Cornyn sought unanimous consent to bring the bill on STEM worker visas to a vote.  Democrat Chuck Schumer objected, noting that while Democrats favored expanding the number of visas available for STEM workers, that Democrats did not believe it had to be done by eliminating the visas available under other immigration programs.

The political wrangling over immigration reform has therefore begun.  There is a question over whether the Democrats will even permit immigration reform to pass.  If immigration reform were to pass, it would rob the Democrats of a political issue where they believe they have an advantage over Republicans. 

This first foray into the issue of immigration reform, therefore, does not bode well for the passage of comprehensive reform.  If political parties cannot agree on the specifics of this one issue, where there is general agreement for the need to expand the visas available for STEM workers, then finding common ground on a host of other immigration topics could prove elusive.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Is Immigration Reform Around the Corner?

One of the emerging themes from the aftermath of the 2012 presidential election is the notion that the Republican Party must evolve to appeal to demographics other than caucasians.  More specifically, analysts say that Romney lost the Latino vote by a margin of 70% to 30%.  This is the widest margin since Bob Dole lost the White House in 1996.  Latinos are the largest growing ethnic group.  With the changing American electorate, many are saying that the Republicans must attract more Latino voters to be competitive in future elections.

The first step, according to conservative talk show host Sean Hannity, is "to get rid of the immigration issue altogether."Hannity surprised many in his audience by announcing that he has "evolved" on the issue of immigration reform.  Hannity urged that securing the borders had to be the top priority, but that there ought to be a "pathway to citizenship" for those who are already here and who do not have a criminal record.

Hannity is not the only conservative voicing a willingness to address immigration reform.  Speaker of the House of Representatives , John Boehner, stated, "A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."

On the campaign trail, Republican Florida Senator, Marco Rubio, addressing the issue of young people brought to this country as children, stated that the United States need to find a solution, more permanent than the President's Deferred Action for Childhood Arrivals program, that was "humanitarian," and "that solves their problem but that doesn’t encourage illegal immigration in the future."

Given these statements by leading conservatives, there appears to be a possibility that immigration reform will be on the agenda for the next Congress.  The big question is what that reform will look like.

In one of the rare instances where Republican candidate Mitt Romney addressed immigration during the Fall campaign, he stated that graduates with degrees in math and science should "get a green card stapled to their diploma."  In September, a bill written by the Chairman of the House Judiciary Committee Lamar Smith, came up for a vote.  The bill would have increased the number of visas made available for graduates with advanced degrees in science and technology, but would have also eliminated the diversity visa program.  Representative Michael McCaul from Texas likewise mentions ending the diversity lottery while increasing the number of visas for graduates with advanced math and science degrees when discussing immigration reform.

The time may very well be right for comprehensive immigration reform.  But exactly what shape that reform will take, and whether it will include a pathway to citizenship for the undocumented aliens currently in the United States remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com