Just What the Doctor Ordered: One State’s Proposed Solution to the H-1B Insanity

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Just What the Doctor Ordered: One State’s Proposed Solution to the H-1B Insanity

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Contributed by Amber Blasingame, Associate Attorney, Colorado Springs Office

According to Albert Einstein the definition of insanity is doing the same thing over and over again and expecting different results. Submission of a cap subject H-1B petition, especially in the last two years, comes dangerously close to insanity. It is no wonder that a state government, in an effort to stop the insanity, would feel compelled to create a “workaround” for bright, up-in-coming, foreign-national entrepreneurs who have paid into the state economy directly and indirectly in the form of tuition for over four years. Massachusetts’ Governor Deval Patrick proposed just such a plan, the “Global Entrepreneur in Residence Program,” on April 10, 2014.

The governor introduced the Residence Program soon after USCIS announced reaching the cap for the second year in a row on April 1, 2014, which lead to yet another lottery for cap subject petitions. Only 65,000 H-1B temporary worker visas are available annually, starting October 1, with an exemption of 20,000 for beneficiary’s who have earned an Advanced Degree from a post-secondary educational institution in the United States. H-1B visas are a popular choice for professionals who have earned at least a four-year bachelor’s degree and received an offer of employment in the United States consistent with their education. As the economy has slowly recovered in the last six years, the H-1B visas have become more and more coveted. For fiscal years 2014 and 2015, USCIS received twice as many petitions than visas available which created a lottery system. No longer is an employer guaranteed at least consideration of its petition if received exactly on April 1, 2014. For fiscal year 2015, USCIS received approximately 172,500 petitions as reported on April 7, 2014.

The “Global Entrepreneur in Residence Program” would establish the Massachusetts Tech Collaborative “to place foreign workers with participating university employers.” Institutions of higher education are exempt from the annual H-1B cap. As long as a beneficiary is employed by a university or college or employed by an organization in association with a University or college, the resulting petition for H-1B status is not counted against the annual 65,000 and/or 20,000 exemption quota.

The program would be available to recipients of advanced degrees in the STEM fields (Science, technology, engineering, science) or accounting, finance, economics, business or business administration, and who “desire to move to or remain in the commonwealth.” Universities would sponsor the foreign nationals in H-1B status and employ them on a part-time basis, 8-15 hours per week, “while they develop entrepreneurship skills.”

Developed skills may include starting a new venture. Such skills and development could actually open foreign nationals to other avenues for nonimmigrant or immigrant status in the United States such as intercompany transferee status, treaty trader or investor visas or green card status based on investment or multi-national manager capacity.

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