Does the H-1B Cap Help or Hurt CIR?

by Robert Webber and Kelly M. Thompson

As anyone involved in employment-based immigration knows, last week was a big week for H-1B cap filings.  The cap season opened on April 1 and closed on April 5.  After the cap is reached, no more cap-subject petitions are accepted for the fiscal year.  H-1B hopefuls who did not file in time must wait until the following April to file again.  If they are in the United States in F-1 student visa status, as many are, they must either somehow extend their education in the U.S. (extend their F-1 student status) or leave the United States when their current status expires.   The vast majority of these students are already employed by U.S. employers pursuant to CPT or OPT.

Based on our experience, when the U.S. economy is booming, the H-1B cap fills up quickly.  In fact, in 2008 the cap was reached on the FIRST day; that is, on April 1-2, 2008, USCIS received 65,000+ petitions from employers across the United States seeking to employ foreign workers with a bachelor’s degree.  2007 was a great year, economically, in the United States; so, it makes sense that the cap was filled quickly on the first business day in April 2008.  As the history goes, in September 2008 prominent financial institutions (particularly Lehman Brothers) collapsed.  In 2009, it took a full 8 months to reach the cap – substantially longer than just one day, a stark contrast between 2 consecutive years.

When the H-1B cap is filled quickly, there is generally a panic in the business community.  Companies air their grievances about the insufficiency of the U.S. labor pool to fulfill the specialized positions that must be filled to keep U.S. businesses growing and competitive in a global market.   And in a period of economic recovery, these are grave tidings.  And Washington should be / could be listening.

So, now that the FY 2014 H-1B cap has been reached in the first five days of April 2013, how might this impact the national political discussion about CIR?

Scenario #1 – Advancing the Cause of CIR

In the national political immigration debate today the focus tends to be, well, a bit misinformed, if not uneducated.  Comprehensive Immigration Reform (CIR) tends to refer to the big question of, “What do we do with all the people who are here without authorization?”  The most recent plan discussed by the Gang of 8 Senators and the White House plan leaked to the press primarily focus on remediating this problem.  (And it is a big problem, that deserves due attention.)  But CIR is not as comprehensive as it might be.  The blueprints discussed today do not really address how to meet the needs of every segment of the economy.  Devising a plan that attracts and permanently retains top-notch, best-in-the-world talent is not really the focal point of the contemporary immigration battle.   It is a footnote at best.

There is a large swath of the population that does not separate the immigration system into the categories of our current policy (family-based, employment-based, and tiers of unskilled, skilled, and really skilled, non-immigrant status and immigrant status), this population by default discusses “immigration” in one lump.

Reaching the H-1B cap quickly this month should make headlines.  These headlines will be dominated by leaders in the industries decrying the insufficiency of our immigration system.  They will praise the merits and talents of foreign born employees and would-be-employees.  Reporters will try to reconcile the need for H-1B workers with ongoing high long-term domestic unemployment, particularly in light of the universally disappointing job numbers published April 5.

Reaching the H-1B cap quickly should infuse the media with pro-immigrant arguments (even if these arguments only talk about bachelor’s degree+ holding immigrants).  The lack of understanding about the divisions present in current immigration policy and practice will advance the cause of CIR, as the many benefits of immigrant brains are lauded.  We anticipate that Giovanni Peri (a pro-immigration economist) will continue to be quoted extensively.   As the benefits of economy-growing immigrant brains are lauded, other groups will join the chorus praising the benefits of immigrant brawn – economy-growing-brawn that is applied to the jobs that Americans simply are not attracted to, but which enable the growth of complimentary jobs that American citizens are not opposed to taking.

Scenario #2 – Advancing the Cause of Piecemeal Reform, thereby harming CIR

While the above is plausible, another scenario exists.  The immediacy of the cap may create momentum for a less-than-comprehensive bill to gain traction.  This bill will respond directly to the employers in the Science, Engineering, Tech, and Financial sectors who lament the insufficiency of the cap to meet their highly educated foreign-labor needs.  In fact, I-Squared fits that bill.

A piecemeal bill would increase the number of H-1B visas available.  It will also reduce the wait time to legal permanent residence (green card) for foreign born talent by adjusting the per-country limitations, expanding or eliminating the annual immigrant visa limit (currently 140,000 per year), or creating a new visa category that pulls available visas from another existing visa category.

We haven’t examined this quantitatively, but feel pretty confident in claiming that many conservative business leaders (and business columnists) are in favor of increasing the H-1B cap.  The first link on the U.S. Chamber of Commerce’s new immigration webpage is to the Immigration Innovation Act (I-Squared).

If the money behind the Republican Party can be satisfied with a piecemeal approach, CIR could again get pushed to the back-burner.

We can expect Rep. Louis Gutiérrez and others to attempt to block this type of piecemeal reform – but we cannot be sure that attempts to block pro H-1B piecemeal legislation would result in concentrated support for CIR.

So in our view, reaching the H-1B cap could result in one of two somewhat opposing outcomes, although Scenario #1 seems more likely; we think that there will be more pressure to move forward on CIR, and quickly.  In fact, the H-1B cap may be just the kind of timing necessity that Congress needs to act.  In Washington these days it seems action only occurs out of necessity and at the last moment.

*Robert P. Webber is an immigration attorney in private practice.  Kelly M. Thompson is a senior case manager and policy research lead.  They blog at www.immpolicy.com.


About The Author

Robert Webber is the Principal Attorney at Webber Law Firm, LLC. He limits his practice to employment-based and family-based immigration law matters. Bob graduated from Wheaton College (Wheaton, IL) with a Bachelor’s degree in Political Science, and earned his law degree at William Mitchell College of Law (St. Paul, MN). Bob is licensed to practice law by the Supreme Court of Minnesota and because immigration law is federal law, he is permitted to represent clients throughout the United States and worldwide on U.S. immigration law matters.

Kelly M. Thompson is a senior case manager and policy research lead.


The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.