With H-1B cap reached, Congress has three options

Here's how Congress may deal with tech industry proposals after the H-1B cap is reached quickly this year

The H-1B cap for next year was reached this week, completing the annual petition process at the fastest pace since the start of the 'great recession.

The quick pace may prompt Congress to act on new legislation to appease the tech industry and its demands for access to foreign workers. It has several options, including some that do not include a controversial direct cap increase.

The U.S. Citizenship and Immigration Service announced Monday that the cap of 85,000 H-1B visas was met on Monday, just two months after the start of petition submissions on April 1. The federal government's fiscal year begins Oct. 1.

The list below shows how quickly the cap was reached in recent years. The government starts accepting petitions each year on April 1.

FY 2013, cap reached: June 11, 2012.

FY 2012, cap reached: Nov. 22, 2011.

FY 2011, cap reached: Jan. 26, 2011.

FY 2010, cap reached: Dec. 21, 2009.

FY 2009, cap reached: April 7, 2008. (One week after the U.S. started accepting petitions.)

The fast pace of reaching the cap this year will likely trigger some calls for an increase in H-1B visas, though Congress is unlikely to act in an election year.

There are some other options, such as those listed below, for lawmakers looking to help the tech industry.

First option: Eliminate per-country caps on green cards. The U.S. issues 140,000 employment-based green cards a year, including those issued to spouses.

The country caps have created multi-year backlogs, for Indian workers especially, who want to transition from an H-1B visa to permanent residency.

Eliminating per country caps would create a global, first-come, first-served permanent residency list. Some countries, such as the Philippines, whose workers have shorter wait times, have opposed this. The tech industry has been lobbying hard such legislation because of the preponderance of Indian workers stuck in visa limbo.

A bill to eliminate per country visa caps was overwhelmingly approved by the U.S. House late last year.

But Sen. Chuck Grassley (R-Iowa) placed a hold on it in the Senate. Grassley won't give the tech industry something it wants unless he gets something in return, which could include more H-1B visa restrictions.

If Grassley can reach an agreement with Sen. Chuck Schumer (D-NY), who heads the Senate immigration subcommittee, than anything is possible. U.S. Rep. Lamar Smith (R-Texas), who heads the House Judiciary Committee, will likely have to agree to any proposal as well.

This measure would have the best chance of passage before the November elections.

Second option: In recent weeks, multiple bills have been introduced in the Senate seeking an expansion of the Green Card program.

Most of them would automatically grant permanent residency to foreign advanced degree graduates in science, technology, engineering and math, or STEM.

Legislation proposed in both the House and Senate, makes it appear as if a groundswell for passage is building.

But various STEM bills differ in key respects, such whether the program should be limited to research universities. Defining STEM fields may be another hurdle.

There is also concern that such legislation would lead to the emergence of advanced degree diploma mills.

Third option: Though a straight H-1B increase appears off the table at this time, that doesn't mean the cap can't still be changed to appease the concerns of the tech industry.

Lawmakers can increase the number of H-1B visas available for engineers and programmers by eliminating some categories in this temporary work visa program, such as fashion models. About half of all H-1B visas issued in any year go to tech workers.

Lawmakers will move cautiously if at all, in part, because of flat overall employment growth.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed. His e-mail address is pthibodeau@computerworld.com.


Copyright © 2012 IDG Communications, Inc.

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