MARCH 2012
Khaas Baat : A Publication for Indian Americans in Florida


Immigration and the Judiciary, the Executive, and the Legislature – PART III

Dilip Patel


EB-5 Investor Program: The EB-5 Entrepreneur Investor Visa Program is up for review. Created in early 1990s and lauded as a job creator and a vehicle to drive the economy, the program has been perennially underutilized, issuing fewer than 2,500 visas in 2010 out of a possible 10,000. A Senate reauthorization hearing on Dec. 7 was to review the Regional Center program, a component of the EB-5 program that permits a $500,000 investment in targeted employment areas in approved pooled investment programs instead of a $1 million, and is set to sunset in 2012. Most observers agree that the program will be reauthorized, perhaps permanently.

Foreign Students Educated in STEM Fields: Continuing the emphasis on economic competitiveness, hearings also have been held to examine options for reforms that do a better job of retaining foreign students who graduate in the fields of science, technology, engineering and math (STEM). Currently, foreign students must leave the United States upon graduation unless they are eligible for one of the few and limited ways to stay in the country. Many politicians are upset that we provide stellar education but don’t reap the benefits. On the presidential trail, hopefuls have also stepped up the rhetoric: Newt Gingrich said during the CNN debate in November that foreign students graduating with STEM degrees should automatically receive work visas.

Combined with the approaching 2012 election cycle and candidates staking out positions, we can expect continued hearings on Capitol Hill on immigration but no comprehensive reform, even though a new nationwide poll shows a large majority of Americans favor a path to citizenship for most undocumented immigrants.

H-1B Professional Visa Cap Reached

On Nov. 23, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary professional visa petitions for employment commencing during the current fiscal year (Oct. 1, 2011 to Sept. 30, 2012). Cap-subject employers seeking to employ new professional workers now must wait until April 1, 2012 to file new petitions for employment commencing Oct. 1, 2012.
H-1B visa petitions are filed by U.S. employers seeking to hire foreign nationals in specialty occupations involving the theoretical and practical application of a body of “specialized knowledge” (such as the sciences, medicine and health care, education, biotechnology). The minimum requirement for the foreign national is a bachelor’s degree or the equivalent work experience (or a combination of education and work experience).

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).

While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.

For the third year in a row, H-1Bs remained available for many months after the U.S. government began accepting applications. Prior to the financial crisis that took hold of the U.S. economy and American business, all 85,000 visas had been exhausted the first day of filing, April 1. This year, these visas were exhausted two months earlier than last year, a sign that the economy is, in fact, starting to recover.

Over the last many years, it is clear that the business marketplace has dictated the pace and demand for H-1B specialty workers. In times of economic prosperity and growth, H-1B visa numbers were exhausted immediately; in times of recession, visas numbers remained available much of each fiscal year. And, before 1990 when the H-1B numerical limitation was enacted for the first time, the needs and demands of U.S. business governed the number of visa petitions filed and granted each year.

With job creation and business expansion key to fueling our economy and America’s competitive edge, when will Congress wake up and change this outdated, quota system? The status quo keeps out some of the best and brightest skilled workers the world has to offer, and ignores the benefit immigrants bring to our shores. America needs a well-functioning business immigration system, one where immigration-related challenges and obstacles do not prevent or delay companies from launching a new venture, expanding an existing company, winning significant contracts for work, or missing opportunities. Changing the H-1B visa system would be a meaningful and important first step.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board certified expert on immigration law, can be reached at (813) 855-0066 or e-mail

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