Washington Lawyer - September 2016 - 13

RAISE H1-B VISA CAP TO MEET DEMAND A problem that immigration attorneys face in bringing highly skilled foreign professionals to the U.S. is the H-1B visa cap of only 85,000 spots (65,000 for the regular cap and an extra 20,000 for foreign nationals with a U.S. master's or doctoral degree), which is simply not enough. In six of the last 10 fiscal years the H-1B visa cap was reached in the first five business days, which necessitated a lottery. Some foreign national chefs have worked for 3-Michelin star restaurants, trained at Le Cordon Bleu, or been mentored by world-class chefs, but they cannot enter the U.S. because their petition was not selected in a random lottery. Congress needs to increase the category to meet the demand for highly skilled foreign nationals. not a specialty occupation eligible for an H1-B. In these types of cases immigration attorneys must help employers prove that requiring a bachelor's degree is the employer's normal business practice and the industry standard, or the specific duties are so specialized and complex that only someone with a bachelor's degree or higher can perform the duties. USCIS should analyze the criteria for H-1B petitions itemized in statute 8 CFR 214.2(h)(4)(iii)(A) instead of relying on the OOH. Dawn C. Sequeira Legacy Immigration Immigration attorneys also struggle with selecting an occupation in the Department of Labor's Occupational Outlook Handbook (OOH), which the U.S. Citizenship and Immigration Services references to decide whether a bachelor's degree is required for a particular occupation. There are several non-traditional or uncommon food service occupations that do not fall under the OOH. For instance, according to the OOH, a "food service manager" does not require a bachelor's degree and is, therefore, THIS MONTH IN LEGAL HISTORY SEPTEMBER 25, 1981 Sandra Day O'Connor is appointed by President Ronald Reagan to the U.S. Supreme Court, becoming the first female associate justice on the Court. SEPTEMBER 24, 1789 The Judiciary Act of 1789 is signed into law by President George Washington, establishing the federal judiciary of the United States. The act also created the position of the U.S. attorney general. SEPTEMBER 17, 1787 The Constitution of the United States is signed during the Constitutional Convention in Philadelphia. The supreme law of the country defines the branches of government and the rights of states. "Some foreign national chefs have worked for 3-Michelin star restaurants, trained at Le Cordon Bleu, or been mentored by world-class chefs, but they cannot enter the U.S. because their petition was not selected in a random lottery." Photos: Robert Frommer courtesy of Institute for Justice, Dawn C. Sequeira courtesy of Dawn C. Sequeira * WASHINGTON LAWYER * SEPTEMBER 2016 13 http://www.dcbar.org/

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