On April 20, 2009 USCIS announced that it had received only 44,000 cap-subject petitions since the filing window opened on April 1. For those who may have forgotten the bedlam of the past two years I will remind you that by this time last year USCIS was only begining to conduct a lottery among the 165,000 petitions that it had received. And 2007 was not much better.
Of course the current recession is the likely reason for this massive decline in the number of petitions. But so are the new regulations that subject banks and other institutions who accept TARP money to highly onerous conditions before they can sponsor anyone for H-1B status. These regulations define any institution that accepts TARP funds or money purusant to Section 13 of the Federal Reserve Act as “H-1B” dependent. As such, before they can file an H-1B petition these institutions must be willing and able to attest to:
1.having taken good faith steps to recruit US workers for the open position;
2. having offered the job to any US worker who applies and is equally or better qualified for the job;
3. having not displaced any US worker employed within the period beginning 90 days prior to the H-1B filing and ending 90 days after the filing (direct displacement); and
4. that it will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a US worker within that same 90 period (indirect displacement).
These regulations have ostensibly vitiated the H-1B program for most financial institutions . With thousands of unemployed bankers and other former employees of the financial services industry, any employer in that industry would be hard pressed to convince USCIS that a good faith effort failed to turn up a qualified US worker.
Interestingly, the regulations exempt those alien employees who are already employed by these institutions in any other non-immigrant status. Thus, any workers in the financial industry who are currently on OPT or TN status, for example, are still eligible for H-1B status without the employer having to demonstrate compliance with these enhanced standards. I must confess that I am puzzled by this seemingly benevolent exemption. The only possible explanation that I can think of is this: The exemption constitutes a tacit admission by Congress of the importance of retaining US college-educated foreign talent, while avoiding the accusation that it is allowing any newly created professional jobs to be filled by foreign workers. And since it is safe to assume that few jobs are likely to be created in the financial services industry anyway in the near future, Congress has effectively portrayed itself as protecting US jobs while still holding onto whatever foreign talent has been hired – and not fired – to date. If I am correct, let us hope that Congress will tackle comprehensive immigration reform with similar regard to the importance of retaining educated and qualified foreign talent.
Regardless, to those employees who may have avoided filing an H-1B petition this year for fear of wasting time and money in a lottery, you still have time to file.