Sure
the new cap has been passed, but will the already backlogged INS be able to deal?
Late last year the
fates of many existing and aspiring H-1B holders took a turn for the better as new
legislation was passed that allows for a higher cap on how many can apply, and new rules
were implemented that may prevent temporary workers from being stuck in bad jobs, taken
advantage of or having to leave the USA before they can obtain green cards.
But new
laws are only as effective as the agencies that carry them out. The USCIS
(formerly the INS) is already severely backlogged and complaints abound from
immigrants and officials alike about the agency's efficiency.
While the number of available specialty worker visas has increased from 115,000 to
195,000, the new law provided for no additional funding, leaving many to wonder if longer
application processing times are on the horizon. Almost the moment the new law was passed,
INS Associate Commissioner Fujie Ohata voiced his concerns about already-tapped INS
resources and his doubts that the agency could handle any more than was already on its
plate. A delayed fiscal budget for 2001 has not helped the situation either, but a new
premium processing fee, which may provide for more financial resources, was ultimately
approved.
In addition to the existing H-1B fees, the INS can work towards a 15-day completion of
H-1B application processing for a fee of $1000, which represents a 50 percent increase from the
previous fee schedule. Of course, this means that larger, wealthier firms will have an
advantage over smaller companies and that skewed version of fairness will trickle
down to the workers themselves as premium application processing inevitably delays
"regular" applications. Furthermore, if the INS gets an extraordinary number of
these premium applications, how will it fulfill its promise to process all of them in 15
days? Details about premium processing and which visas will first receive this option have
yet to be ironed out.
One facet of the law may help with the backlog is that those transferring an existing H-1B
may begin work as soon as the new employer submits the paperwork. It seems relatively
certain that because of this decision, transfer applications will quickly become the first
to be put on a back burner, but with little consequence to worker or employer.
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