E-Verify + Stem Degree = Possible Workaround to Shortage of H-1BS

Thomas W. Hildreth
Of Counsel, Corporate Department
Published: New Hampshire Business Review
February 5, 2010

Clean Green Energy Systems, LLC (CGES), is a development-stage company in the greater Salem, New Hampshire area.  CGES is looking for ways to commercialize its break through understanding of photosynthesis in seaweed and how that process can be used to produce low cost, low carbon energy in homes and small businesses. CGES’s core technology grows out of research conducted by  the University of New Hampshire School of Aquaculture.  Urvish Singh completed his masters in aquaculture at UNH in May, 2009. From June through November he worked in Woods Hole using six months of his available post-completion Optional Practical Training.  In December, he was hired as a research scientist by CGES.

Ordinarily, CGES would apply immediately for an H-1B visa for Urvish.  However, the annual cap on H-1Bs has been reached and new ones will not be available until October 1, 2010.  Urvish’s current OPT will expire at the end of May, 2010.

Is there anything that CGES can do to keep Urvish on its payroll during the period of June 1 through September 30, 2010?  What can CGES do if it does not win an H-1B visa even for the period beginning October 1, 2010?

By the time this article appears – near the end of 2009 or beginning of 2010 – there will be no more H-1B visas available for the 2010 federal fiscal year.

The United States Citizenship and Immigration Services (USCIS) reported that the fiscal year 2010 H-1B cap count had reached 64,200 as of December 17, 2009.  Cindy Kibbe alerted us to the approaching cap last month when she reported that, of the 65,000 H-1B visas which became available on October 1, 2009, only 53,800 had been spoken for as of October 30.  (“H-1B Visa Quota Remains Open,” NHBR, 11/11/2009).

Cindy’s coverage was from the other direction – rather than raise a warning that we were about to run out of H-1B visas, she was writing to express surprise that there were still H-1Bs even available so late in the year.  Petitions for new H-1B visas can be filed as early as April 1, a full six months before the visas themselves can be use for employment in the United States.  In the past several years, all 65,000 H-1B visas had been allotted within weeks, and, in some cases, only days, of April 1.  The fact that we still had H-1Bs available into the second half of December is a big improvement over previous years, but is still a far cry from what we need to take maximum advantage of the value and talent of foreign workers.

David Brooks recently offered a 9-point plan to invigorate innovation as a way to jump start the economy.  His sixth point is to “loosen the so-called H-1B quotas to attract skilled immigrants.”  (“An Innovative Agenda,” NYTimes, 12/08/2009).  Foreign inventors and entrepreneurs are involved with the formation and development of many successful U.S. technology firms.  H-1B visas are often their ticket in.

Moreover, H-1B visas are often sought by foreign nationals who earned their college or graduate degrees in the US.  Many foreigners are attracted to study in the United States.  After completing a degree, foreign students are eligible for twelve months of Optional Practical Training (OPT) – a paying job in their field which they can hold for one year under the umbrella of their student visas.  A typical progression is for a foreign student to move from F-1 student, to OPT trainee, to H-1B worker.

With an annual limit of 65,000, the United States has only a fraction of the number of H-1B visas that we would need if every foreign student sought a job in the U.S. after graduation.

A recent article in The Chronicle of Higher Education reported that the number of foreign students in the U.S. hit a new high in the 2008-09 academic year, with more than 671,000 international students (“Number of Foreign Students in U.S. Hit a New High Last Year,” The Chronicle of Higher Education, 11/16/2009).  If a quarter of that number graduates each year, we would need 167,000 H-1B visas if all of the foreign graduates sought to put their newly minted degrees to work in our economy.  Interestingly, the only years when the H-1B cap was not reached in this decade were the first three – when the cap was temporarily increased to 195,000.

As it stands today, we impose no numerical limit on the number of foreign students welcome to study in the US.  Many US colleges and universities actively recruit foreign students.  The same article from The Chronicle of Higher Education cites an estimate that international students contribute $17.6 billion to the US economy.

In the past three years, USCIS received during the first week of April more H-1B petitions than there are H-1B visas available.  The agency randomly selected which petitions it would act on first.  Some employers got lucky; some did not.  When getting an H-1B is like playing the lottery, and foreign students have only a 30% chance of getting one after graduation, some foreign students are opting to study in countries that make it easier to stay and work after graduation.  And in a world that is flat, and where everyone is connected to the internet, the alternatives for education and employment in places other than the US are increasingly viable, competitive and attractive.

The challenge for the US is to recalibrate the H-1B visa program so that everyone who elects to come to the US, for a world-class education has the opportunity pursue a world-class position with a world-class employer.  Or to start that new company if it doesn’t yet exist.

In the meantime, employers like CGES who need the talents of a recently graduated foreign national may elect to take advantage of a recent change on the law which allows the 12 months of post-completion OPT to be extended for an additional 17 months, for a total of 29 months in OPT status.  The 17-month extension is available to employers who enrolled in the E-Verify program and whose OPT candidate has a degree in a so-called STEM field; that is, science, technology, engineering, or mathematics.  While H-1Bs remain unreliable or unavailable, the ability to extend the tenure of a recent graduate for nearly a year and a half is a valuable work-around, and may give you repeated bites at the H-1B apple.