I. New Legislation Introduced to Retain Foreign Talent

Over the past few months, a number of bills have been introduced that are designed to help employers recruit and retain talented foreign nationals who hold U.S. master’s or doctoral degrees in a science, technology, engineering or math (STEM) field.

In late September, House Judiciary Committee Chairman Lamar Smith (R-TX) (along with 68 co-sponsors) introduced H.R. 6429, more popularly known as the STEM Jobs Act. This Act proposes to eliminate the annual Diversity Visa (“Green Card”) Lottery Program (under which 55,000 green cards are randomly allocated to natives of countries with low rates of immigration to the United States) and reallocate those green cards to STEM graduates of U.S. universities. According to the proposed legislation, the green cards would first be made available to foreign graduates with U.S. doctorates in STEM fields, and any remaining green cards would be allocated to foreign graduates with U.S. master’s degrees in STEM fields. In order to qualify, the student would also need to be sponsored by an employer through the normal PERM labor certification process on a determination that there are no qualified U.S. workers for the position being offered.

On November 30, the STEM Jobs Act was passed by the House, and has made its way to the Senate for consideration. Its ultimate fate, however, does not look promising. On November 28, the White House issued a statement opposing the Act, objecting, in particular, to the elimination of the Diversity Visa Lottery Program. More broadly, the Administration noted that it would not support “narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform” – a statement which strongly indicates that, even if the Act were to pass the Senate, it would quickly meet with a Presidential veto.

Not to be outdone in the STEM arena, in September 2012 Senator Chuck Schumer (D-NY) introduced S. 3553 (known colloquially as the “BRAINS Act”), a bill which would create 55,000 new green cards over a two-year period for foreign graduates who graduate from U.S. universities with advanced degrees in STEM fields. Unlike Representative Smith’s plan, the BRAINS Act would not affect the Diversity Visa Lottery Program, although it too would contain a labor certification requirement for employers. In addition, the legislation would allow nonimmigrants in certain visa categories (including H-1B, L-1, and O-1) to renew their visas from within the United States rather than through an embassy abroad.

In addition, Representative Zoe Lofgren (D-CA) has recently introduced the Attracting the Best and Brightest Act of 2012 (H.R. 6412) – a bill which is in many respects similar to Senator Schumer’s Act. This bill aims to create 50,000 new immigrant visas in a new (EB-6) green card category reserved for foreign nationals holding advanced STEM degrees. Like Senator Schumer’s bill, Representative Lofgren’s proposed legislation would retain the Diversity Visa Lottery Program, while also retaining a labor certification requirement for employers interested in hiring the graduates on a permanent basis.

In short, none of these bills radically changes the landscape for business immigration. The calls by many commentators and politicians to “staple a green card on each new graduate’s diploma” are not being addressed by any of these bills, all of which still require a job offer and a finding that the individual is uniquely qualified. This may be difficult to establish when someone is just graduating from university and has no work experience.

Also, these bills do nothing for advanced degree graduates in all other fields, including economics, law, business administration and finance. What these bills would accomplish is a partial reduction in long backlogs for Indian, Chinese and some other nationals, who are disadvantaged by the very inadequate per-country quotas that treats each country, big or small, alike. That system has resulted in delays on green card cases of many years for Indian and Chinese nationals, who make up the bulk of the advanced degree graduates coming out of U.S. universities in the STEM fields.

II. H-1B Numbers to Open Up on April 1 for October 1, 2013 Start Date

On April 1, 2013, U.S. Citizenship and Immigration Services will begin accepting new H-1B petitions for professional positions. Although the petitions can be filed on April 1, the start date for the employment can be no earlier than October 1, 2013.

We believe the annual H-1B quota will be fully subscribed within a relatively short period after April 1, so we recommend that you file your new H-1B petitions on that date or shortly thereafter. We anticipate that with the economy picking up speed, this year the numbers will go quickly, as they did in the years prior to 2009.

Please consider reviewing your employment needs now to determine whether you wish to sponsor any of your current or potential employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training status, TN status, or J-1 or J-2 status, as well as those you plan to bring on board after October 1, 2013.