Every April Fool’s Day, we play tricks on one another, good-natured fun with hoaxes usually followed by a cry of “April fool!” and a good hearty laugh.
Consider that you run a for-profit business that is constantly looking for talent and seeking to keep certain foreign nationals who have proven that they have just the right type of skill to perform a specialty role in your organization.
If your business is in Pittsburgh — where there are thousands of students studying, researching and creating at some of the world’s top universities — you might think you have your pick from a wide range of recent graduates, some of whom may be foreign nationals.
What a foolish notion.
You likely may not know that the foreign national came to the United States on a student visa known as the F-1, and is authorized to work for you for only a limited period of time on what is known as “Optional Practical Training,” or “OPT.” OPT is usually good for one year, but for certain students in science, technology, engineering and mathematics (STEM) fields working for employers using E-Verify (the government’s employment eligibility system), the OPT can be extended for 17 months. Usually, if working out well during OPT employment, he or she would be a “keeper,” for whom another visa is required.
To extend that employee’s employment eligibility beyond OPT, you would have to file for another visa known as the H-1B. It’s great for employers needing workers with at least a bachelor’s level of education. You must offer and pay a “prevailing wage” as determined by the Department of Labor.
Other requirements include a $325 visa fee, $500 anti-fraud fee, $1,500 training fee (employers of fewer than 25 workers pay $750) and maybe even legal fees.
Lots of employers know the benefits of the H-1B visa and that it’s one of the only ways to secure new professional-level talent. Of course, there are other possible nonimmigrant visa routes, known in government-speak as “TN,” and “E-3” and “O-1,” but these have limited applications.
Moreover, there always is a limited supply of H-1Bs.
Each fiscal year, the government issues no more than 85,000 H-1B visas. While employers may file April 1 for an H-1B visa beginning Oct. 1, even if filing right away, it’s likely the supply will run out and you’d be out of luck.
In 2014, as with the last two years, demand far exceeded supply. The government received more than 172,000 applications in just the first five business days of April, and the window shut abruptly. Anyone not applying was left out. Even if the application is technically correct and timely filed, even more luck is needed to get the visa.
These applications properly and timely filed and received by the government will be subjected to a 50-50-like lottery, which will allow about half of the applicants to receive an H-1B visa and remain in your employ.
For those who are not lucky: “April fool!” You’ll get your filing fees back, but you won’t get to keep your employee any longer.
The joke will be on the worker as well. Regardless of how talented, educated and effective the foreign national may be in your company, she or he will have to find a way to stay in the U.S. legally or may need to leave the country altogether — while your skilled position becomes open again.
This is quite a foolish game to play. It’s also the current law, sad to say, with no changes planned in the foreseeable future.
Robert Whitehill is a Pittsburgh lawyer who chairs the immigration group of the law firm of Fox Rothschild. Contact him at firstname.lastname@example.org