Beginning next week on April 3 (since April 1 is a Saturday), immigration practitioners and petitioners will be able to file new H-1B petitions for those who have never had H-1Bs, commonly referred to as “cap cases.” Amid the uncertainty over whether President Trump plans to makes dramatic changes to the H-1B program, immigration experts anticipate another record-breaking year of petitions. While some immigration practitioners attribute the expected high amount of petitions to the strong economy and high demand for specialized knowledge positions in hubs such as Silicon Valley, others believe this may be their last shot for an H-1B before it is overhauled. “There are a lot of companies that are saying, ‘Hey, this is my only opportunity to get in under the current H-1B situation,’ because everyone is expecting a change,” Marcine Seid, an immigration attorney in Palo Alto, tells the San Francisco Chronicle. “And they don’t expect it to be for the better.”
Silicon Valley tech companies, from Facebook to startups, rely on H-1B visas to staff many engineering and other specialized knowledge positions. For fiscal year 2017, US Citizenship & Immigration Services (USCIS) received a record 236,000 petitions. For this year, several immigration attorneys predicted that 250,000 to 300,000 petitions would be filed. The number of petitions, which are overwhelmingly for Indian nationals, has nearly doubled since 2014, although the number of H-1B cap visas available has stayed the same at 65,000 for those holding a bachelor’s degree or equivalent and an additional 20,000 for those who possess an advanced degree earned at a US accredited educational institution.
Jason Finkelman, an attorney in Austin, Texas, reports he will file nearly double the number of H-1B petitions as last year. “There’s all this talk of how it might change and how it might be more restricted in the future,” he says, adding that clients “across the board” are filing more applications this year. Not all companies, however, are reporting increases. Reed Hastings, CEO of Netflix, said at a Stanford University talk on immigration this month that his company has no “measurable change” in the amount of petitions it will file this year.
The visa program has been a point of disagreement between many tech companies and the US government, with many companies arguing that there are not nearly enough available visas to fulfill the demand for foreign workers. For the past several years, USCIS has received so many H-1B cap cases that the application period has only been open for a week, a trend that is expected to continue this year. In 2012, petitions were accepted for nearly eight months before the cap was filled.
One of the complaints of the H-1B visa program is that it allows large corporations to eliminate American employees in favor of cheaper foreign workers. The Brookings Institution found, however, that in general H-1B visa holders earn more than comparable native-born workers with bachelor degrees, even within the same occupation and industry for workers with similar experience. Moreover, Brookings also found that the vast majority (90 percent) of H-1B petitions are for positions requiring high-level STEM knowledge—positions that are much more difficult to fill with American workers. In another study, McKinsey & Co. estimates that 1.5 million jobs will go unfilled by 2020 as a result of the skills gap and labor shortage for qualified workers.
President Trump’s views of the H-1B program have varied. In his speech to Congress, he called for a merit-based system that values skilled immigrants over more traditional family-based immigration. At times he has spoken critically of the H-1B visa category and threatened to eliminate the visa program, but during some of the campaign debates he spoke favorably of the H-1B program, seeming to admit that it helps keep top international graduates in the US.
An additional complication this year: USCIS will temporarily suspend premium processing for all H-1B petitions filed on or after April 3, 2017. As nearly sixty percent of H-1B cap petitions are ordinarily filed via premium processing—since many employers rely on premium to receive an expedited response if the case is selected—this change is frustrating for practitioners and companies. William Stock, president of the American Immigration Lawyers Association, says that the limited number of H-1Bs and difficulty in applying will have an impact down the road. “People who are already in school here have made the choice of America, but people who haven’t yet chosen, they are looking at Canadian universities and Australian universities much more seriously,” he says.