U.S. Tech Firms, Citing ‘Brain Drain,’ Push to Hire More Skilled Foreigners
Via the Los Angelas Times
0212/2006
President Bush’s recent call for more visas for skilled foreign workers
increases the likelihood that relief is on the way for U.S. technology
firms that say they are struggling to fill key positions.
In a Feb. 2 speech at the Minnesota headquarters of 3M, the president
said it was a “mistake not to encourage more really bright folks who
can fill the jobs that are having trouble being filled here in
America.” He called on Congress to be “realistic” and “reasonable” and
expand the quota of H-1B visas, which are used to bring in skilled
workers on a temporary basis.
Paul Zulkie, a Chicago immigration attorney, said the president’s
statement raised the pressure on Congress to respond to a “crisis faced
by American businesses.” He said he gets at least two calls a week from
companies desperate for help in hiring prospective foreign employees.
Silicon Valley companies are among the most vocal advocates of H-1B
reform. For decades, these companies attracted engineers, computer
programmers and other professionals from around the globe. Now they say
they are experiencing a reverse brain drain as skilled workers flock to
the booming economies of China and India.
“Every employer still
faces a shortage of certain talent,” said Lynda Ward Pierce, head of
human resources for SVB Financial Group, the parent company of Silicon
Valley Bank. “I think people going from here to there exacerbates the
problem.”
Though the debate in this country about outsourcing
work overseas has quieted down in the United States, it remains a
sensitive political issue. In December, an effort to get an H-1B visa
expansion provision attached to a budget bill was defeated in Congress.
“The business community is incredulous at the congressional
intransigence in refusing to raise the cap,” said Zulkie, the immediate
past president of the American Immigration Lawyers Assn.
In
response to high demand for H-1B visas at the start of the decade,
Congress expanded the annual quota to 195,000 visas for three years,
then cut it back to the current 65,000.
The allotment of H-1Bs
for the fiscal year that started Oct. 1 was filled by August, and
companies have to wait until April to apply for next year’s slots. The
U.S. agreed this year to give 20,000 additional visas to foreign
graduates of U.S. master’s and PhD programs, but those were filled last
month.
If no changes are made, immigration experts expect
next year’s quota to be filled even faster, given the improving economy
and tightening of the job market.
Click to read article
H-1B Portability and Travel under AC21
I often receive questions concerning whether travel abroad is possible based on the previously stamped H-1B visa (with unexpired dates) through a former employer. The legacy INS
Memorandum from Michael A. Pearson, Executive Assoc. Comm’r, Office of Field
Operations (January 29, 2001) states
that an H-1B beneficiary is admissible at a port of entry even if he or she is
no longer working for the original petitioner, provided that the following
conditions are met:
1. The applicant is otherwise
admissible;
2. The applicant, unless exempt under
8 CFR §212.1, §1212.1, is in possession of a valid, unexpired passport and visa
(including a valid, unexpired visa endorsed with the name of the original
petitioner);
3. The applicant establishes to the
satisfaction of the inspecting officer that he or she was previously admitted as
an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in
possession of the previously issued Form I-94, Arrival/Departure Record, or a
copy of the previously issued I-94, the applicant may present a copy of the Form
I-797, Notice of Action, with the original petition’s validity dates; and
4. The applicant presents evidence
that the new petition was filed timely with the Service Center, in the form of a
dated filing receipt, Form I-797, or other credible evidence of timely filing.
In order to be a timely filing, the petition must have been filed prior to the
expiration of the H-1B’s previous period of admission. The burden of proof is on
the applicant to show that he or she is admissible as an H-1B and eligible for
visa portability provisions described in AC21. Please ensure that you collect all proper documentation prior to utilizing this process. In addition, you should obtain a letter from your current employer certifying that they are aware of your trip. If possible, consult an attorney for details concerning your specific case.
Press Gaggle by Scott McClellan, John Marburger, Director of Office of Science & Technology Policy and Claude Allen, Assistant to the President for Domestic Policy
Excerpts from Press Gaggle Aboard Air Force One
En route Maplewood, Minnesota
11:01 A.M. EST
…
Claude Allen, Assistant to the President for Domestic Policy: “The last piece of
the puzzle is in immigration. The President’s proposal calls for being
able to recruit the world’s best and brightest to come to America to
work alongside America’s best and brightest in terms of science,
engineering and high skilled laborers to come in under this proposal.
And so we will be working to work with Congress the H1B program, which
is the high skilled labor visas, which right now is about 65,000 visas
a year. They are consumed very quickly at the first of the year, and we
need to look at increasing that to do that. We’re looking also at other
visa initiatives, working with Congress to address that, as well, for
skilled laborers, high skilled laborers to come into the country.”
…
“Q On the immigration initiative, how many — you said 65,000 visas, H1B visas are issued?
MR. ALLEN: That’s the current number.
Q Okay. And what do you want to increase it to?
MR.
ALLEN: Well, we’ll let the President talk about that today; you’ll hear
him talk about that. But, again, we have not looked at a specific
number as yet. I know the President may have one that he’s spoken about
that we’ve looked at. But, historically, we have had — between 2001
and 2003 there was about 119,000 — let me make sure of that number —
195,000, I’m sorry — 195,000 H1B visas between ’01 and ’03.
We anticipate that the 65,000 clearly is too low. You would want to bump that up.
Q
Wasn’t that that huge number difference during that time — wasn’t that
during the bubble of Silicon Valley, a lot of third world —
MR. ALLEN: That’s correct. That’s correct — that many —
DR. MARBURGER: — and you need significantly more than we have.
MR.
ALLEN: Some of reports have called for increases of 10,000; others
between 20,000 and 40,000. So there is a number of options on the table
to be considered. But we’ll work with Congress on that.”
Bush calls for lifting cap on special H-1B visas
MAPLEWOOD, Minn., Feb 2 (Via Reuters) – President George W. Bush on
Thursday called on Congress to raise the cap on the so-called H-1B
visas that allow companies to fill high tech jobs with foreign workers.
“The problem is, is that Congress has limited the number of H-1B visas,” Bush said in a speech.
“I think it’s a mistake not to encourage more really bright folks who
can fill the jobs that are having trouble being filled in America, to
limit their number. So I call upon Congress to be realistic and
reasonable to raise that cap,” he said.
USCIS REACHES H-1B EXEMPTION CAP FOR FISCAL YEAR 2006
USCIS – 01/18/2006 – Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations for foreign workers with a U.S.-earned master’s or higher degree (the number of aliens exempted from the H-1B cap on this basis may not exceed 20,000 per fiscal year). Consequently, USCIS has determined that the “final receipt date” for these 20,000 cap-exempt H-1B petitions is January 17, 2006. Petitions received on January 17th are subject to the random selection process described below. USCIS will reject petitions requesting a foreign worker with a U.S.-earned master’s or higher degree that are received after the “final receipt date” unless the petitioner or beneficiary is eligible for a separate cap exemption.
USCIS has implemented the following procedure for H-1B filings for FY 2006 in accordance with the procedures announced in 70 FR 23775 (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004):
• USCIS has closely monitored FY 2006 H-1B filings for foreign workers with a U.S.-earned master’s or higher degree and used projections to determine the number of petitions necessary to reach the congressionally mandated cap exemption of 20,000.
• Having determined that a sufficient number of petitions have been received, USCIS will identify all H-1B petitions seeking an FY 2006 number that were received on the day USCIS received the number of petitions necessary to meet the 20,000 cap exemption (“final receipt date”).
• For petitions received on the “final receipt date,” USCIS will apply a computer-generated random selection process. This process will randomly select the exact number of petitions from the day’s receipts needed to meet the congressionally mandated cap exemption of 20,000.
• After random selection, any remaining H-1B petitions for foreign workers with a U.S.-earned master’s or higher degree that do not receive an FY 2006 number and are not otherwise exempt will be rejected and returned along with the filing fee(s).
• Petitioners may re-submit their petitions when H-1B visas become available for FY 2007.
• The earliest date for which a petitioner may file a petition requesting FY 2007 H-1B employment with an employment start date of October 1, 2006, is April 1, 2006.
H-1B Visa Current Cap Count
(01/11/2006) – There is still some time left to obtain a FY2006 US Advance Degree Exemption H-1B visa as you can see below:
|
H-1B |
H-1B Advance Degree Exemption |
H-2B 1st Half |
H-2B |
H-2B |
|
|
Cap |
58,200* |
20,000 |
33,000 |
33,000 |
66,000** |
|
Beneficiaries Approved |
—— |
17,306 |
—— |
2,304 |
50,309 |
|
Beneficiaries Pending |
—— |
2,316 |
—— |
6,310 |
9,199 |
|
Total |
Cap Reached |
19,622 |
Cap Reached |
8,614 |
59,508 |
|
Date of Last Count |
8/10/2005 |
1/10/2006 |
12/15/2005 |
1/11/2006 |
1/11/2006 |
*6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements and to the extent unused can first be made available for general use on October 1, 2006, the start of FY 2007.
**Currently, there is insufficient data for USCIS to make a reasonable determination of the cut-off number needed to reach the FY’06 H-2B cap. The cut-off number will be posted when such information is available.
H-1B & H-4 Consular Processing Document Checklist
The following is a checklist utilized by the Chennai Consulate, however, you should strive to obtain as much of this information as possible even if your appointment is not in Chennai. This is not an exhaustive list, and you may take other documents with you if you have them, but the following are absolute essentials. Remember to answer the Consular Officer’s questions honestly, confidently and succinctly.
For H-1B Visas
1. Original notice of approval (I-797), the H-1B petition along with an attorney-authenticated copy of the petition, the LCA and other supporting documents, DS-156/157 w/2 passport style pictures;
2. The originals of the applicant’s university degree certificate and mark sheets;
3. Letter from petitioning employer confirming employer’s intent to hire the applicant;
4. Originals of the applicant’s work experience letters;
5. Pay slips from current or most recent place of employment;
6. Current telephone numbers of the personnel managers at the applicant’s present and past jobs;
7. Provide written directions, utilizing common names and landmarks to the applicant’s present and past jobs;
8. Photographs of the inside and outside of the applicant’s current or most recent place of work;
9. Names and contact information of two co-workers from past jobs;
10. A complete resume (bio-data) and cover letter describing current job duties in detail;
11. Personal bank records for the last six months;
12. U.S. company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report;
13. If the applicant is current working in the United States on an H-1B visa, also submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2) for all years in which the applicant was employed in the United States;
14. A complete set of photocopies of the above listed documents. The application will not be accepted without the originals and photocopies.
For H-4 Visas
1. Birth records of children;
2. Marriage registration certificate;
3. Original I-797 Notice of Approval;
4. Copy of principal’s H-1B petition, LCA and supporting documents;
5. Wedding invitation and wedding photos;
6. All 36 pages of the principal applicant’s passport (if not applying with principal applicant). If a copy of the passport is submitted, it should be a GOOD copy and the photo must be clearly identifiable;
7. A letter from the H-1B company confirming the continued employment of the applicant’s spouse;
8. Copy of the principal applicant’s work experience letters;
9. Copy of the principal applicant’s offer of employment with the U.S. company; and
10. If the principal applicant is currently working in the United States on a H-1B visa, then submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2s) for all the years in which he or she has been employed in the United States on the H-1B visa.
Sanctions & Penalties against H-1B Sponsors Who Violate Laws
It is extremely important to utilize the services of an
Immigration Attorney when filing an
H-1B. Small errors or oversights
can subject an employer to a
multitude of sanctions and penalties. Our law firm works actively
with our clients to ensure the
maximum amount of protection from
such penalties. In
addition to the fines and penalties
discussed below, willful violators
may be randomly investigated by the USCIS for a period of five years. Click here to for more information about the H-1B.
1. $1,000 fine and one-year prohibition
from filing immigrant and
nonimmigrant visa petitions for
failure to meet strike or layoff
attestation; substantial failure to
meet working-condition attestation
or displacement attestation, posting
or recruitment attestations, or
misrepresentation of material fact
in the LCA;
2. $5,000 fine and two-year prohibition
from filing immigrant and
nonimmigrant petitions for willful
failure to meet any attestation, or
willful misrepresentation of
material fact in the LCA; and
3. $35,000 fine and three-year
prohibition for willful failure to
meet an attestation condition, or
willful misrepresentation of a
material fact in an LCA, in the
course of which failure or
misrepresentation, a U.S. worker is
displaced during the period
commencing 90 days before filing the
application and ending 90 days after
filing the H-1B visa petition.
4. $5,000 and prohibition from filing
petitions for two years for
retaliation against employees who
are ‘whistle blowers’. The whistle
blower provision covers employees,
former employees, and applicants who
disclose information to the employer
or to “any other person” that the
“employee reasonably believes
evidences” is a violation of INA
§212(n). Also protected by the
whistle blower provision are
employees, former employees, and
applicants who cooperate or seek to
cooperate in a proceeding or
investigation concerning the
employer’s compliance with INA
§212(n). The employer violates the
whistle blower provision by
intimidating, threatening,
restraining, coercing, blacklisting,
discharging, or in any other manner
discriminating against a whistle
blower. The ACWIA allows an H-1B
nonimmigrant whistle blower to
continue to work in the U.S.
following retaliation by the
employer.
5. $1,000 penalty for requiring an H-1B
nonimmigrant to pay a penalty to the
employer for leaving the job prior
to a contracted date. Employer may
also be required to return the
amount paid to the H-1B nonimmigrant
unless the amount is purely
liquidated damages.
6. Penalty for benching an H-1B. An
employer is in violation of the LCA
requirement at INA §212(n)(1)(A) for
placing an H-1B nonimmigrant in
unpaid nonproductive status due to a
decision by the employer “based upon
factors such as lack of work,” or
due to the H-1B nonimmigrant’s lack
of a permit or license. A violation
will be found for failure to pay
full-time wages to a full-time
employee, failure to pay a part-time
employee the part-time rate
identified in the visa petition,
failure to pay a new H-1B employee
within 30 days of admission, or
failure to pay a new H-1B
nonimmigrant already present in the
United States within 60 days of the
date the nonimmigrant becomes
eligible to work for the employer.
The prohibition against unpaid
nonproductive status does not apply
to nonproductive time due to
non-work related factors such as a
voluntary request by the
nonimmigrant for an absence like
maternity leave or circumstances
rendering the nonimmigrant unable to
work. The prohibition against unpaid
bench time also does not preclude a
“school or other educational
institution” from paying an annual
salary over fewer than 12 months if
it is an established practice and
the beneficiary agrees to it.
7. $1,000 penalty per violation and one
year’s disbarment from filing H-1B
visas, or $5,000 per willful
violation and two years disbarment
for an employer’s failure to offer a
job to a qualified U.S. worker or
misrepresenting the attestation as
required by INA §212(n)(1)(G).
8.
If an H-1B nonimmigrant
is dismissed before the end of the
period of authorized stay, the
employer is liable for the costs of
return transportation to the
beneficiary’s foreign residence. Any
dismissal is covered, including one
for cause. The exception is when the
beneficiary voluntarily terminates
employment. In addition, the
employer is now required to withdraw
the H-1B petition to ensure that it
is no longer obligated to pay the
required wage for the employee who
has been terminated.
H-1B Employer to pay fine and $2.25M in back wages for benching and underpaying H-1B workers
(11/29/2005) – Southfield, Mich.- based IT services company Computech Corp. will pay $2.65 million in back wages and fines to settle a U.S. Department of Labor (DOL) complaint that it underpaid 232 H-1B workers. It will also be prohibited from participating in the H-1B visa program for 18 months under an agreement announced last week by the DOL.
Computech was formed in 1996, and the settlement covers violations alleged to have occurred between 1998 and 2000.
Within two years of its founding, the company had brought on more than 200 foreign workers. The company failed to pay these workers minimum required wage rates and frequently benched workers, the DOL said in a statement. Benching refers to the practice of not paying workers in between contracting jobs.
A DOL spokesman stated that the settlement may well be the largest back wage payment ordered under the H-1B sanctions program.
Computech’s president, Ram Kancharla stated that the company today has about 400 to 500 employees. He said the company is less dependent on H-1B workers today, but in 1998, there was a shortage of workers with the technology skills in Java- and Web-related work. The company handles ERP implementations, application support and development, and remote database management. It conducts work in India and the U.S. and has more than 200 employees based in the U.S.
“The Department of Labor aggressively enforces the law to ensure that temporary foreign workers are compensated fully and fairly,” Secretary of Labor Elaine L. Chao said in a statement. “Abuse of the temporary foreign worker program is not tolerated and violators, as this case shows, are vigorously pursued.”
Travel (with prior H-1B visa) and H-1B portability
The
legacy INS Memorandum from Michael
A. Pearson, Executive Assoc. Comm’r,
Office of Field Operations (Jan. 29,
2001) gives details regarding when
an H-1B holder who transferred to a
new company is able to travel while
awaiting the new H-1B adjudication.
The
letter states that an H-1B
beneficiary is admissible at a port
of entry even if he or she is no
longer working for the original
petitioner, provided that the
following conditions are met:
1. The
applicant is otherwise admissible;
2. The
applicant, unless exempt under 8 CFR
§212.1, §1212.1, is in possession of
a valid, unexpired passport and visa
(including a valid, unexpired visa
endorsed with the name of the
original petitioner);
3. The
applicant establishes to the
satisfaction of the inspecting
officer that he or she was
previously admitted as an H-1B or
otherwise accorded H-1B status. If a
visa exempt applicant is not in
possession of the previously issued
Form I-94, Arrival/Departure Record,
or a copy of the previously issued
I-94, the applicant may present a
copy of the Form I-797, Notice of
Action, with the original petition’s
validity dates; and
4. The
applicant presents evidence that the
new petition was filed timely with
the Service Center, in the form of a
dated filing receipt, Form I-797, or
other credible evidence of timely
filing. In order to be a timely
filing, the petition must have been
filed prior to the expiration of the
H-1B’s previous period of admission.
The burden of proof is on the
applicant to show that he or she is
admissible as an H-1B and eligible
for visa portability provisions
described in AC21.
The U.S. Immigration Law Blog by Ashwin Sharma 
An Open Letter To USCIS Ombudsman Prakash Khatri: AC21 In Court
Julie Soininen’s open letter to Mr. Prakash Khatri, Ombudsman, USCIS requesting clarification of AC21.
Click here to read the article