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
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