For the first time in six years, Congress is giving serious thought to raising the current cap on the number of individuals eligible for H-1B visas issued annually to overseas professionals working for biopharmas and other U.S. tech employers.
Sens. Chris Coons (D-DE), Orrin Hatch (R-UT), Amy Klobuchar (D-MN) and Marco Rubio (R-FL) have introduced The Immigration Innovation Act of 2013. The measure would raise the H-1B cap from the current 65,000 to 115,000—and even higher, under some circumstances.
An additional 20,000 H-1B visas would be available immediately if the cap limit is reached within 45 days after petitions can start to be filed. That number shrinks to an additional 15,000 H-1B visas if it takes 60 days to reach the cap limit, 10,000 if 90 days are needed, and 5,000 if the cap is reached during a 185-day period that ends on the 275th day petitions may be filed.
The I2 Act also calls for uncapping the existing U.S. advanced-degree exemption from the cap, now limited to 20,000 per year; authorizes employment for dependent spouses of H-1B visa holders; and exempts from the employment-based green card cap holders of advanced U.S. science, technology, engineering, and mathematics (STEM) degrees; “outstanding” professors and researchers; and persons with “extraordinary ability.”
The visa cap applies to private biopharmas and other tech companies, but not to not-for-profits such as universities or research institutions. No biopharmas were among top 25 employers requesting H-1B visas during 2010–2011, yet uncapped employers generated 72% of demand for life scientists and 80% of demand for biological scientists, according to U.S. Department of Labor statistics included in a Brookings Institution study last year.
“It leaves businesses uncertain on who can and can’t get hired. And if that best candidate happens to be a foreigner, they can’t hire that person because the cap is reached. It makes business difficult,” Neil Ruiz, senior policy analyst and associate fellow in Brookings’ Metropolitan Policy Program, and co-author of “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas,” told GEN.
Workers from India and China face waits of eight years of more for green cards in the employment-based second preference (EB-2) category, for people of “exceptional ability” and “advanced degree” holders, according to a study last year by the National Foundation for American Policy, which favors ending per-country limits for employment-based immigrants.
Lives on Hold
“People don’t like to put their lives on hold, whether they’re from outside the United States or the United States. If you know you’re stuck for the next four to nine years, basically in the same job, it makes it really unattractive to immigrate to the United States,” Edward R. Litwin, founder of the immigration law firm Litwin & Associates in South San Francisco, CA, told GEN. “It’s the private companies that are really struggling. That may be a strong term, but they want the best person. And if the best person happens to be from India or from England, they want to hire that person.”
Economic improvement, slow as it is, creates urgency to raise the H-1B cap. Litwin expects all 65,000 visas for FY 2014 to be issued soon after Washington starts accepting applications on April 1.
Back in 2007, President George W. Bush and a bipartisan group of 20 U.S. senators crafted an immigration overhaul that also would have raised the H-1B cap to 115,000, and further if the cap was reached early. The measure died in the Senate after opponents denounced provisions toward eventual citizenship for illegal immigrants—an unwarranted amnesty, they argued.
The current push toward an immigration bill follows the impact of Latino voters in helping re-electing Obama last year. “Now the handwriting is on the wall, and even the Republicans are realizing they need to do something about it,” Litwin said.
If officials can uncouple H-1B reform from the thorny issue of immigration reform, visa caps could be raised this year, Ruiz of Brookings says.
“If anything is going to happen, it will happen between now and the summer,” Ruiz said, noting that elections for the whole House and one-third of the Senate occur next year. “You wouldn’t want this to happen during an election year. Otherwise it could get scary for anyone running for office.”