In this second installment, the focus will be placed on foreign students who enter the United States (U.S.) in order to study and earn United States degrees. The Institute of International Education reports that in the 2009/2010 year, there was a 3% increase in enrollment of foreign students in U.S. universities. Right now, a larger proportion of these students return to their home country than remain in the United States. And, as such, the capital investment in education and work experience gained by these foreign graduates in the U.S. is lost to the student’s country of origin.
In the very least, in order to gain a return on the investment in these students (some of whom are offered U.S. scholarships), the United States should make temporary nonimmigrant work visas more accessible and available.
The usual route for many of these students, on completion of their program of study, is that they will do one year of work in their field of study as permitted by our laws, during which time, should they wish to stay and work further, they would have to secure sponsorship for an H-1B temporary work visa, or otherwise qualify under another visa category.
The current reality is that many employers do not fully understand the prerequisites for hiring foreign graduates and believe the process is difficult and expensive. To some extent, it is. However, legal practitioners have the ability and the duty to demystify the process.
The H1-B visa is employer driven. It allows foreign graduates to work in the United States for a specific amount of time. It is supposed to give U.S. employers the opportunity to hire foreign professionals if a U.S. citizen or resident is not available.
One criticism of the visa – and the largest reason why employers shy away from it – is that it requires that the employee is paid the prevailing wage for the particular position and the area location of the job. This wage is set by the U.S. Department of Labor and it is often higher than prevailing local wages in order to attract U.S. workers. To complicate matters, the process also requires an intensive recruitment process to ensure that no U.S. citizen or resident is available for the position. The third obstacle is the yearly cap of H-1B workers imposed by Congress which causes unreasonable delays between the recruitment time and the actual employment of foreign students who are recruited from U.S. universities.
Thus, the H1-B visa process can be a mystery for employers, and many employers avoid it because they feel the steps involved are insurmountable and burdensome.
On the part of the foreign student, there is some hope, however, on the horizon, in the form of the Start-Up Visa Act of 2011, if the bill can make it through Congress. Whilst it is largely geared towards entrepreneurs, there is some provision in it for foreign holders of U.S. graduate level degrees in science, technology, engineering, math, computer science, or other relevant academic disciplines. They would qualify for a StartUp Visa if they can show an annual income of at least $30,000 or assets of at least $60,000, as well as a U.S. investor who backs their business venture by at least $20,000. After two years, their business must have created 3 new jobs and generate not less than $100,000 in revenue.
Until such innovations are a firm reality, it appears that immigration practitioners have the duty to demystify the H1-B visa process for employers. There are huge benefits to hiring foreign students who have graduated from U.S. universities which relate to diversifying the workplace. In addition to this, the current reality is that time, money, knowledge and expertise is invested in these students. Congress should create more opportunities for these foreign students. If not, their early departure from the United States will lead to the country’s falling behind in leading the way in innovation and global market domination.