U.S. quotas hinder employment visas
By MATT CHANDLER
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Despite grim employment figures coming out of the nation's capital, there is a shortage of skilled workers in the fields of science, medicine and computer technology.
Local companies and organizations often look to international workers to fill those voids. Unfortunately, they find that getting proper documentation to bring (or keep) foreign nationals in the United States is increasingly difficult.
Frank Novak, a partner in Harter Secrest & Emery LLP, specializes in helping companies navigate the complex and often murky waters of securing work visas for potential employees. He said the most common type of visa for such workers is the H1B, which usually is given to "professional workers" in medicine, science, computers and architecture or engineering. It enables a foreign national to work in the United States for three years, with an option for a three-year extension. According to Novak, the challenge is actually obtaining the visa.
"No matter who you talk to in the employment immigration field, they will tell you the main challenge in the employment immigration field is the H1B quota," he said.
The quota, set by the government, caps the number of such visas issued at 65,000 annually - plus another 20,000 exemptions for foreign nationals who hold a master's degree earned at an American university. That may sound like a lot, but Novak said they go fast.
"I consider the H1B to really be the backbone when we think about how to bring people into the United States to work," he said. "But the quota has made it challenging for many foreign nationals to work here."
In 2012, he said, the quota was exhausted by June, leaving potentially thousands of workers on the outside looking in.
"If you have a need for some critical talent and it turns out a person from another country who is smart, hardworking and entrepreneurial may want to work for you, there just may not be that option to employ that person," he said.
Each year, foreign nationals looking to work in the United States may apply for an H1B visa beginning April 1. There are exceptions to the quota, including universities and nonprofits, but for the most part, most foreign workers have to fight to get into the pool and then hope they make the cut.
"When the economy first tanked back in '07-early '08, less people were hiring so the quota wasn't an issue," Novak said. "But as things have slowly improved, we have seen the H1B visas run out earlier each year for the last several years."
Attorney Rosanna Berardi of Berardi Immigration Law said her practice has seen firsthand the devastating effect that stringent rules for H1B visas can have on local industry.
"I have one specific case where a Canadian gentleman who is originally from China invested an incredible amount of money in Western New York and had a huge contract for his services locally. And despite that huge investment, we were not able to get him in," she said. "It is incredibly frustrating to see someone who is investing in the region, and who is incredibly qualified, shut out."
According to Berardi, it's just one example of a system that is short-serving the region and hurting foreign nationals as well as businesses.
"There is still a huge need for foreign workers in the U.S.; there just aren't enough qualified workers in certain industries," she said. "So American companies are forced to recruit internationally."
Berardi said she represents several large companies in Western New York that "beat the bushes" to recruit international talent - something she said they would prefer not to have to do.
"They would absolutely prefer to hire American workers to fill these jobs, if that were an option," she said. "It's cheaper, it's faster, but right now, for many of these employers, it doesn't exist."
The process of securing documentation for a single worker can cost in excess of $5,000 between filing costs and attorneys fees, she said. And that is with no guarantee the worker will be successful in obtaining a visa.
"The government is really picky right now about who they will let in," Berardi said, noting that she has seen applicants face even greater scrutiny within the past 18 months. "They are looking microscopically at the sponsor of the applicant to make sure it is a legitimate employer, doing all kinds of background checks and making sure it is a legitimate job offer."
In the current climate, she said, it is "incredibly difficult to bring a worker to the United States under the H1B program."
Margot Watt, meamnwhile, is a partner in Hodgson Russ LLP and leads the immigration practice group. She said politics certainly come into play in the decision to keep the H1B quota where it is. That is, with millions of Americans out of work, no politician wants to be the one opening the door to bring more foreign nationals here to work - even if it is for jobs that lack qualified American candidates.
"Any type of legislation that has come up regarding legal immigration issues in recent years has really taken a back seat to the whole illegal immigration debate," Watt said. "Despite urgings from U.S. employers who use the H1B visa classification, it is not a priority item."
Though it may be difficult to quantify, she said there is no doubt local industry is hurt by the current system of issuing visas to professional workers.
"For an employer who has been capped out, I think it forces them to oftentimes postpone growth plans because they are usually hiring these individuals for a specific job with a specific skill set," she said. "So when they can't bring those workers on board, it limits their options."