A possible, temporary solution to the H-1B visa shortage

Q.Clean Green Energy Systems LLC, a development-stage company in the greater Salem area, 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, who completed his master’s in aquaculture at UNH in May 2009, was hired as a research scientist by CGES. From June through November he worked in Massachusetts using six months of his available post-completion Optional Practical Training, or OPT. His OPT expires at the end of May 2010.
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 Oct. 1, 2010. Is there anything that CGES can do to keep Urvish through Sept. 30, 2010?A. By the time this article appears, there will be no more H-1B visas available for the 2010 federal fiscal 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 used 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. Last year, H-1Bs were still available into the second half of December — a big improvement over previous years, but still a far cry from what we need to take maximum advantage of the value and talent of foreign workers.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 United States after graduation. (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.)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 — more than 671,000. If a quarter of that number graduates each year, we would need 167,000 H-1B visas if they sought to put their newly minted degrees to work in our 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 percent 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 U.S. are increasingly viable, competitive and attractive.The challenge is to recalibrate the H-1B visa program so everyone who elects to come to the United States 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 that need the talents of a recently graduated foreign national may elect to take advantage of a recent change in the law which allows the 12 months of post-completion Optional Practical Training 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 — 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.Tom Hildreth, director in the Corporate Department of McLane, Graf, Raulerson & Middleton and founder of its Immigration Law Practice Group, can be contacted at 603-628-1177 or tom.hildreth@mclane.com.

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