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Q: Why Congress didn't raise the amount of available H1B visas and Employment Based Green Cards?

A: It’s the economy stupid!  This time I’m not making reference to the phrase used during Bill Clinton’s campaign against George H.W. Bush, but rather to Congress. Its no secret the US economy is currently struggling, subprime, credit crisis, falling real estate prices, no jobs, declining corporate profits, etc.  But you wouldn’t know the US economy is struggling by looking at the current US immigration work visa situation.  In particular, H1B skilled work visas, and employment based green card applications.  Every year, there is a mad rush to apply for the precious 65,000 regular cap and 20,000 US Masters Cap work visas, and this year is not exception.  In the first 5 and only days the USCIS received applications, there were approximately 163,000 applications by 163,000 skilled workers with good paying jobs just waiting for them with the approval of their H1B application.  The numbers break down roughly to a 50% chance with applicants having a US Masters degree having slightly better than 50% chance of being able to accept their “future employer’s” job offer.  What does this mean?  Approximately 80,000 skilled workers will either have to find a different visa (generally not too many options but there are some) to contribute their skills to the US economy or pack there bags and head home with possible thoughts of next year.  Its almost as bad for workers wanting to obtain an employment based green card where the US government is required to allot a minimum of 140,000 green cards through employment.  This may seem like a lot but judging by the wait times for employment based green cards there are not enough available green cards.  For example, Chinese and Indian immigrants holding the equivalent to an advanced degree wishing to apply for a second preference employment based green card (EB2 – members of the professions holding advanced degrees or persons of exceptional ability), their wait time is approximately 4 ½ years from date of application to receipt of green card.  Its about a 5 year and 7 year wait respectively for Chinese born and Indian born 3^rd preference employment based green card applicants (EB3 – skilled workers, professionals, and other workers).  Did I mention that the overwhelming majority of employment based green card applicants and all h1b applicants have a paid job offer waiting for them?    

Now back to the central thesis of this article - It’s the Economy Stupid.  What is Congress thinking?  The US economy is struggling, yet there is huge demand for skilled immigrants that generally have a job lined up as seen by the over-demand of H1B applications and employment based green card applications.  And despite the positive economic benefits caused by immigrants with work visas, Congress still continues to limit the amount of available visas.  And to borrow another line from George H.W. Bush, “Read my Lips” Congress, how about doing something good for the economy and ultimately your constituents, simply raise the amount of available H1B visas and available green cards and let’s attract some of the brightest minds from around the world and get this economy on fire again!

Q: I am a H1B applicant for the 2009FY, I know that H1B petition has always been competitive and I'm worried that if my application is not approved or if in the case of lottory, not selected. My question is, what options do I have if my H1B petition/application is not approved?

A: You are correct. H1B petitions has become very competitive. Last year, the final number of H1B cap-subject petitions received exceeded double the amount of what congress set. If your petition is not approved or selected (in the case of lottery), there several options that may worth considering, depending on one's particlar background and qualification.

• H1B Cap-Exempt-Petition - if your employer is an institution of higher education or a nonprofit organisation or entity related to, or affiliated with an institution or higher education. As they are not subject to the annual H1B cap, there is relatively lesser risk of not having your petition selected for adjudication, if ever a lottery selection is decided by the USCIS.

• E3 Visa - Available only to Australian citizens. Basically, the E3 visa is similar in many respects to the H1B visa. One of the advantages of getting a E3 than H1B is that it is not subject to the 65,000 annual visa and spouses of E3 visa holders may work in the US without restrictions and E3 visa is renewable indefinitely.

• E1 Treaty Traders Nonimmigrant Visa - The US has entered into trade treaties with several countries and established this visa to help citizens of those countries to engage in international trading activities. To qualify, you must be born from a qualify country; work for a qualifying business; be either a 50% owner to key employee and most of your company's trade must be wtih the US.

• E 2 Treaty Investor - if you are a business person from one of the treaty countries and you plan to develop and direct the operations of an enterprise in which you have invested, or of an enterprise in whcih you are actively in the process of investing a substantial amount of capital as required by the Immigration and Nationality Act, prinicipally between the United States and the foreign state of which you are a national, then the E2 Visa may be the appropriate for you.

• O or P Visa - If you are a professional Athletes, Musician or be in a entertainment industry, and you have a US employer. You may be qualified for a O or P visa based on your non-academic skills.

• TN Visa - The North America Free Trade Agreement (NAFTA) between the United States, Canada and Mexico permits Canadian and Mexican visitors who are going to perform one of the approved professionals listed in NAFTA without having a work visa. For details, click here.

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