Although lack of funding, high caseloads, and shortage of attorneys are nothing new in America’s public defense system, the pandemic has worsened the problems to a new level. As many courts in New England began to reopen after a long period of closure due to the pandemic, many public defenders were facing a large number of stacked up cases whose proceedings were suspended during court closure. As a result, public defenders now bear much heavier workloads and many of them simply decided to leave the office or stop taking new cases due to the unbearable caseloads, leaving their co-workers even more work. Such heavy workloads also endanger their clients’ deserved quality defense. Each criminal case requires hours of legal research, investigation, and client correspondence. A public defender working on too many cases cannot invest enough time in each case, and would therefore fail to provide quality defense for their clients. At the same time, international students interested in becoming public defenders are discouraged from doing so due to difficulties obtaining a working visa in the US. But there exists one solution to both problems: granting non-citizen public defenders’ exemption from the H-1B visa cap. This solution may incentivize international students studying law in the US to become public defenders and would ease the current shortage of public defenders, provide much-needed work options for foreign law students, and improve the quality of public defense in general.
To many fresh graduates in American law schools, public defense, unfortunately, is not really alluring. For most students who lack full-tuition scholarships, law school is an investment. Many students face sizable student loan debt and are therefore more likely to pick more lucrative jobs, such as big law positions in a prestigious big law firm to pay for their debts. Public defenders, in comparison, are paid considerably lower with a medium starting salary of $63,638 per year. In big law firms, on the other hand, this number is $217,000 in 2021. Therefore, new law school graduates in need of money would likely choose to go to a big law firm rather than a public defender office.
But the above scenario applies mostly to law students who are US citizens. For international students, there is a different story. While many international students come to the US for education alone, many others are looking for an opportunity to become permanent residents. Such students would need to work for a period of time after graduation and wait for their Green Card. To work in the US, a foreigner would need an H-1B visa. The problem is that the government issues only 65,000 H-1B visas each year using a lottery system. This is called the “H-1B cap.” If an international student fails to secure the visa within a certain period of time after graduation, then he or she would have to leave. International law students can, however, apply for one year of Optional Practical Training (OPT) after graduation. During OPT, they are allowed to work in the US, but must secure an H-1B visa after their OPT period if they wish to continue working in the US. Because the OPT period lasts for only one year, international law students only have one chance to win the H-1B lottery. This is an issue for all international law students.
Notably, international law students who choose to enter big law firms are the leading birds in the H-1B lottery game. Biden administration recently defended Trump’s new H-1B visa rule that prioritizes foreign workers with higher salary. Under this rule, big firm attorneys are more likely to secure H-1B visas compared to their public defender counterparts. In addition, even if the big firm lawyers fail to secure a visa, they usually would not have to quit their positions. Big law firms usually have international offices. If a foreign lawyer fails to secure their H-1B visa, a big law firm can just send the lawyer to one of the firm’s international offices. Sullivan & Cromwell LLP, for instance, has offices in Asia and Europe. An international lawyer working in such firms would not have to worry about losing their job if they lost the H-1B lottery game.
However, international lawyers seeking a public defender career must rely on the lottery. First, unlike big law firm positions, public defense is a practice limited within the US. Once the attorneys fail to acquire the visa, they essentially lose their job. Second, if they want to resume criminal law practice in their home country, they would face significant hardship. A criminal defense lawyer would experience difficulties practicing in another state due to differences in applicable law, let alone in a different country. If international public defenders go back to their homeland, they likely would have to start from scratch and relearn the laws and procedures. Their knowledge learned in a US law school would be deemed useless to local law firms or legal aid offices. In this way, the H-1B visa lottery cap pushes international students away from public defense careers. After all, international students interested in public defense risk losing their jobs and leaving the US with skills that are unlikely to be useful outside of the US.
There are ways to work around the H-1B visa cap, but none apply to public defense. If one works for universities or related non-profit organizations, non-profit research organizations, or government research organizations, then he or she is exempt from the H-1B cap. Unfortunately, public defense and many other public interest organizations are not qualified for the exemption. The exemption covers only higher education institutions or research-related organizations.
An extended H-1B cap exemption to public defense would provide great incentives for international law students in the US to choose public defense careers. Not only would such students not have to worry about leaving the US without a job, but they also no longer need to play the H-1B lottery to stay in the US. For those international students who prefer permanent residence over a big law firm job, they could choose to become a public defender. And as more international students join public defense, the public defender shortage would lessen in severity. As a result, clients in need of a public defender could also expect better quality defense. The low salary of public defenders is still a disincentive, but under the new approach, international students interested in public defense and permanent residency can feel comfortable choosing this career without fearing losing their jobs due to visa lottery.
This is a bold step, and many people might oppose this approach for its deviation from the old rule. The visa cap exemption traditionally only applies to employees of research organizations or higher institutions. Moreover, in recent years, the standard for organizations to be qualified for exemption is getting stricter: the organizations now need to offer more evidence to prove that research is one of their primary activities. However, there is no need to stick too strictly to this old rule. In fact, arguably, litigation is a form of research in legal studies. America is a common law country, in which a large portion of law is built up upon previously decided cases. Each time when lawyers investigate a new set of facts, there is a chance they could discover a legal issue never decided before. And the new issues, once decided, could contribute to America’s law by becoming new rules. It is true that litigation is far from the traditional research activities, but it does contribute to the field of law in a way that traditional research does.
As mentioned above, during the pandemic, the US public defense system faces a severe shortage of attorneys, which also adversely affects defendants’ right to counsel. There are many international students in American law schools who have the potential to become great public defenders, but the current visa policy unfortunately bars them from doing so, and instead incentivizes them to work in big law firms. Granting a public defense exemption to the H-1B visa cap could incentivize international law students to more strongly consider public defense as a potential career choice, and would help solve the current public defender shortage. Under the new approach, the public defender offices, the foreign law students interested in public defense and green cards, and the clients waiting for quality defense are all winners.
About the Author: Fengshu Yang is a Chinese international student interested in criminal defense. He is considering moving to Canada after graduating from Cornell Law School and start his career there.
Fengshu Yang, Easing H-1B Visa Cap for International Public Defenders: a Way to Resolve Current Shortage of Public Defenders, Cornell J.L. & Pub. Pol’y. The Issue Spotter (October 27, 2021), http://jlpp.org/blogzine/?p=3767.