Open Doors Ploy #2: Manipulating Ceilings on Nonimmigrant Flows

By David North on August 16, 2010

Increasingly (and appropriately) Congress, in recent years, has been placing ceilings on some inflows of nonimmigrants. These ceilings apply only to a tiny minority of nonimmigrants, and of nonimmigrant categories.

As might be expected, the mass-migration lobbyists have been busily expanding, where possible, and where they cannot, defining away these numerical limits.

There are currently, as far as I can make out, six nonimmigrant flows with annual numerical ceilings, as follows:

H-1B (regular program, high-tech workers) 65,000
H-1B (advanced degree high-tech workers) 20,000
H-2B (other non-ag workers) 66,000
P-1 (athletes, artists, entertainers) 25,000
T (trafficking victims) 5,000
U (other crime victims) 10,000

These ceilings are for new petitions or visas, and do not relate to the renewal of old visas.

The H-1B ceiling story is the oldest and most complex. The first numerical limit on any class of nonimmigrants was established by Congress in 1990 when a maximum of 65,000 H-1B visas per year was established. As that program grew more popular with employers, the maximum was increased to 115,000 for 1999 and 2000, and again to 195,000 (the 65,000 tripled) for 2001-2003. Then in 2004 it seemed to revert to 65,000, but there were the usual employer-created complications.

By 2004 those resident workers who felt that they had been either displaced by the H-1Bs, or had their wages reduced by their employment, had started to raise their voices and the Congress acted to reduce the size of the program. (For more on the underlying economic injustices of the program, see the comments of Professor Norm Matloff, of UC-Davis, the leading academic critic of the program.)

But the employers saw to it that the original 65,000 limit was not restored as such. They got Congress to create yet another category with another ceiling, this one for H-1B workers with master's or doctoral degrees, and set that ceiling at 20,000. And then it created yet another category, H-1Bs working at universities. Not working for universities, but at them. There is no ceiling for this group, which includes many corporate-related H-1Bs who are working on university campuses.

So while there used to be a single category for H-1Bs, now there are three.

Ironically, given the current recession, neither the 65,000 quota nor the 20,000 has been filled this year, with only 28,500 applicants as of August 6 for the first category, and 11,900 for the second, according to this USCIS report.

Within the 65,000 ceiling there is a little-used set-aside for H-1B1 workers, those from Chile and Singapore. There are 6,800 potential slots in this subcategory, but only a few over 100 are being used annually, high-tech workers in those two prosperous nations preferring, presumably, to stay at home.

While the Chile-Singapore arrangement does not increase the number of H-1B slots available to alien workers, another minor adjustment to the system, elsewhere in the Pacific, does. As part of the transitory program for bringing immigration into the Commonwealth of the Northern Mariana Islands under national control, there is a temporary exemption from the numerical limits of the H-1B program for people coming to work in CNMI and Guam, as set forth in this USCIS document.

The H-2B ceiling is handled differently. There are to be 66,000 slots a year, according to this USCIS factsheet, with half for the first half of the fiscal year, and then half for the second half. Further, there is a "fall down" procedure, so that if all the slots are not used in the first half of the year, the ones left over "fall down" for use in the second part of the year.

This is the only use of the fall-down manipulation that I know of within the nonimmigrant categories, though it has long been used in the immigrant ceilings, as mentioned in my earlier blog on ceilings in the immigration programs. Again, the notion is that every possible alien must be admitted, and that no slots should "go to waste."

While dependents in most immigration categories have their visas counted within the ceilings, this is not true in any of these nonimmigrant categories, another technique for expanding the flow of migrants.

Within the P category of nonimmigrants (athletes, artists, and entertainers) there are four subcategories, three for principals (P-1, P-2, and P-3) and a fourth (P-4) for dependents; only the first category carries a limit, which is 25,000 a year.

On top of this long-standing, ceiling-stretching arrangement noted above, the current administration has decided to make it easier to use these visas. Apparently responding to Hollywood and arts community complaints, USCIS has, according to this Los Angeles Times story, moved in that direction.

The utilization of both T and U visas has expanded sharply during this administration, and the U visas (for resident, often illegally resident, crime victims) has for the first time exceeded its numerical limits, USCIS has reported.

Naturally, there has been a demand from mass-immigration advocates that the numerical ceiling be scrapped. But wait, there's a way around one aspect of the ceiling.

If you are not able to work legally, and if you file at a time when the U ceiling blocks immediate action on your application, you are still eligible for a Notice of Conditional Approval, and you can use that notice to file for work authorization. This is spelled out in this USCIS document. Dependents of the primary person with conditional approval are also eligible for work authorization, again without numerical limits.

So a numerical limit is a numerical limit only until someone can figure a way around it.