The New World of H-1B processing
It’s that time of the year again: H-1B season, when employers and prospective employees run around like chickens without heads, trying to file an H-1B petition on the magic day of April 1st, with the hope of securing one of the precious 65,000 “cap subject” H-1B visas for those who hold the equivalent of a U.S. undergraduate degree or qualify for one of the 20,000 additional visas allocated for those who possess a U.S. Masters degree.
It’s that time of the year again: H-1B season, when employers and prospective employees run around like chickens without heads, trying to file an H-1B petition on the magic day of April 1st, with the hope of securing one of the precious 65,000 “cap subject” H-1B visas for those who hold the equivalent of a U.S. undergraduate degree or qualify for one of the 20,000 additional visas allocated for those who possess a U.S. Masters degree. Those who fall outside of the cap because they are employed by non-cap subject H-1B employers (such as universities or other non-profits affiliated with universities) are not as crazy, for they do not have to meet this critical April 1st deadline.
This April 1st, however, is a bit different than previous April 1sts. With massive layoffs across the board, most U.S. employers have plenty of qualified U.S. workers to choose from and are forgoing the H-1B route. After all, why spend over $3,000 in USCIS filing fees, plus attorney fees, to hire a foreign worker who has to be paid the “prevailing wage”, as determined by the Department of Labor, versus a U.S. worker who, ironically, in this economic environment, is willing to work for a much lower wage just to have a job? That is, unless the foreign worker comes to the table with special skills.
For these reasons, bets are being taken: will all of the 65,000 plus 20,000 cap subject H-1Bs go within the first few days? Will they last into May? Your guess is as good as anyone else’s. What makes this H-1B usage “guessing game” a bit more interesting is a review of the companies that gobbled up cap subject H-1B visas last year in huge quantities. Some of the major users, with numbers of visas noted, include: Infosys Technologies Ltd. (4, 559 visas), Wipro (2, 678 visas), Satyam Computer Services Lt (1, 917 visas), Tata consultancy Service Ltd. ( 1, 539 visas), Microsoft( 1, 037 visas), Accenture LLP (731 visas ) and Cognizant Tech Solutions US ( 467 visas). Note that all of these companies are high tech IT companies. Thus, the question: how many H-1B visas do each of these companies actually need in this economy? The answer: we’ll know soon enough.
There’s another factor which may decrease H-1B usage: the new rules contained in the Troubled Asset Relief Program (the TARP bill), section 13 of the Federal Reserve Act and the Employ American Workers Act. These laws prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the above bills, which are referred to as “covered funding” and further designate the company as an “H-1B dependent employer.” Once the label of “H-1B dependent employer” is slapped on a company, that company must now jump through hoops and make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA):
- It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
- It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
- It has not “displaced” any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant visa is sought; and
- It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.
Are these rules fair? Absolutely — unless the H-1B Employer community wants to share prime time television with those AIG executives who received bonuses as their company went down the tubes. In these painful economic times until and unless American jobs once again become plentiful our immigration laws must reflect the reality of the marketplace and those foreign nationals who bring so much to our country sadly, must remain on the “back burner”.