http://www.immigration-law.com/Canada.html
08/28/2004: Approaching Reach of FY 2005 H-1B Cap and Big Black Hole for Professional Workers Next One Year
Exactly when the H-1B cap will reach is anyone's guess at this time, but it is almost certain that the cap will reach before October 1, 2004, most likely the middle of September. The H-1B annual cap is 65,000, but since 5,400 is taken out for Singapore H-1B1 and 1,400 is taken out for Chile H-1B1under the Free Trade Agreements with these two countries, FY 2005 H-1B is reduced to 58,200. Out of 58,200, USCIS already used 40,000 as of August 4, 2004 including pending cap cases. What it means is that as of August 4, 2004, the USCIS had the balance of 18,200. Assuming liberally that USCIS uses from 12,000 to 14,000 a month, by the end of first week of September, the USCIS may have less than 5,000 numbers to use. This calculation leads to an assumption that the cap may reach around the middle of September, 2004. However, this is purely a speculation and people are encouraged to file the H-1B as quickly as possible within next week. Once a case is filed before the cap is announced, the case is fairly safe because there are two potential numbers that can be added to the reserve. One is denials. Traditionally, approximately 10% cases have been denied. Due to the current ongoing denial culture, it can go up higher than the traditional figures. Second sources are Singapore/Chile FTA unused H-1B1 numbers. Some numbers from these sources can be added to the H-1B cap as the additional numbers after October 1, 2004. When the agency annouces the cap, it usually considers these numbers.
What are the U.S. employers going to do for the period of one year? Obviously, some employers are not affected by the cap, particularly higher learning institutions. But most of private industry employers will have to face a serious crisis. For the U.S. employers, they may have no choices but tapping whatever sources available assuming that their scream at their Congress people is answered in deaf ears. Certainly, it will accelerate outsourcing of jobs. Snatching of H-1B employees from the competitive companies may be intensified, which may be a good news for those who already have a H-1B status. Employers will also have to rely on some alternative employment visa options such as O, J, H-2B, H-3, L, E, P, etc. The most popular alternative source will remain L-1 visas, but this visa category is under the Congressional microscolpe for reform or restrictions. Additionally, as the employers attempt to utilize these alternative sources of employment nonimmigrant visas, the agency is likely to tighten up the adjudication policy to assure that these visa types are not abused. DOL's backlog reduction plan and PERM program could have given the employers additional sources to tap for the U.S. employers as it would produce increased number of I-485 filers who would possess EAD, but due to the delay in launch of these programs, the U.S. employers are not likely to get much help from these sources. Additionally, when it comes to snatching of I-485 employees from the competitive employers, the current policy of USCIS on I-140 portability more or less shuts out such opportunities.
There are some industries that have to rely on professional foreign workers because of the nature of the business and international competition. These employers will have to face a challenge for the next one year. Taking advantage of the anti-immigrant environment in the U.S., U.K., Canada, Australia and other international competitors have been attracting the brains from other countries and this trend is anticipated to accelerate. This will leave a long-lasting scar on the future of this country beyond economy. "America" is changing.
