Only 42,000 H1B petitions received in first week

For the first time in several years, the US has received only 42,000 petitions against the mandated cap of 65,000 for H-1B work visas, much sought after by highly-skilled professionals including Indians, a week after it started accepting the applications.

This is a far climb down from previous years when the US Citizenship and Immigration Services (USCIS) had received several times the Congress-mandated quota and it had to resort to a lottery system to decide fate of successful applicants.

"USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap," USCIS said in a statement issued yesterday.

However, USCIS said it has received approximately 20,000 petitions, full quota, in the advanced degrees category. "We continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable." Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

Experts Debate H1-B Visas, Foreign Worker Issues

From NYTimes blog: Do We Need Foreign Technology Workers?
From NYTimes.com: Immigration and Jobs: Where U.S. Workers Come From
From eWeekBlog: Experts Debate H1-B Visas, Foreign Worker Issues
From LATimes: Demand for temporary worker visas shrinks

US immigration urged to increase H1-B visa allocation

US think tank, the Heritage Foundation, has called upon the US government to increase the allocated number of H-1B visas to 195,000 in order to boost taxes and help economic recovery.

Although there have been fears that H1-B visa holders may take jobs that US citizens could be doing, the Heritage Foundation says this fear is unfounded and that attracting skilled foreigners to work in the US is extremely beneficial to the economy.

Currently, 65,000 H1-B visas are allocated each year. The number has reduced over recent years despite massive oversubscription from companies that want to recruit talent from abroad.

The Heritage Foundation report says the notion that US workers are displaced by foreign skilled work-visa holders is a “popular myth.” They claim, “raising the cap for H-1B visas will not steal American jobs but will help promote economic growth and generate much needed tax revenue.”

The report suggests that if a quota for one year is met, it should automatically increase for the following year, and thus, unused US visas can be used the following year if demand falls.

The foundation concluded: "allowing the appropriate levels of high skilled workers into the United States helps the American worker, the economy, and America's federal budget."

H-1B Visas Still Available for FY 2010

Citizenship and Immigration Services (USCIS) said Wednesday that it still has H-1B visas available for fiscal year 2010, a week after it began accepting applications from educated foreigners.

This contrasts with last year when the agency was immediately swamped with more than 160,000 applications for visas, said Eric Thomas, a spokesman for Compete America, a network of companies and organizations that promotes recruiting talent to maintain a competitive workforce.

For fiscal year 2010, which begins Oct. 1, 2009, USCIS can issue up to 20,000 H-1B visas to applicants with a master’s degree or higher and up to 65,000 additions visas to those with bachelor’s degrees or similar training. The agency began accepting applications on April 1.

Mr. Thomas said he still expects USCIS to reach its ceiling, but it’s likely that most applications will come from people already on American companies’ payrolls, not new workers from abroad.

“We’ve found again from most of our companies that the employees that they file H1-B visas for, it’s sort of the only option for them as they wait for their green cards,” Mr. Thomas said.

He also pointed out that “it doesn’t seem to make sense to us to train them and educate them here and send them home to compete with American companies.”

That point of view has been met with opposition this year as Americans struggle to find work in an economy with an 8.5% unemployment rate. Congress already put in place some restrictions, like forbidding companies that receive funds from the Troubled Asset Relief Program from using H-1B hires until they can prove they were unable to recruit American workers.

A Rush for Work Visas Even as Demand Dips

Source: TheNewYorkTimes
The yearly scramble by employers for temporary visas for foreign scientists and technology engineers started on Wednesday, with immigration authorities expecting fewer new petitions this year because of the recession and because of new restrictions on financial companies that received emergency federal aid.

For five business days beginning Wednesday, Citizenship and Immigration Services will accept petitions for the temporary visas known as H-1B for the 2010 fiscal year, which begins Oct. 1. In recent years, visa limits were reached in the first days of the application period.

Over the weekend, employers like Microsoft and Cisco Systems rushed to send petitions by express mail and courier services so they would reach the agency when it opened Wednesday.

In spite of an expected lull in demand, employers and researchers predicted that the limits would quickly be reached again this year in part because of backlogs from last year. The annual H-1B limit is 65,000 visas, with a few exemptions, including the first 20,000 petitions from immigrants with degrees at the master’s level or above from American universities. In 2008, about 163,000 petitions were filed.

At many American universities, more than half of graduates with advanced degrees in science and engineering are foreign. “These visas are really the only practical way for employers to hire them,” said Stuart Anderson, executive director of the National Foundation for American Policy, who has studied use of the visas.

In February, as part of the economic stimulus legislation, Congress added conditions for H-1B visas for banks that received assistance from the Troubled Asset Relief Program, known as TARP. The banks must show that they will not displace an American from a job to be filled by an immigrant for three months before and after the immigrant is hired.

Bank of America and Merrill Lynch, among others, said that provision led them to rescind small numbers of job offers to graduating foreign students and financial technology engineers.

In 2008, according to figures from Citizenship and Immigration Services, the top four companies seeking H-1B visas were from India. By far the most visas — 4,559 —went to Infosys Technologies, a $4 billion company in Bangalore, which used them to place Indian information technology workers in American companies. Microsoft, the first American company on the list, received 1,037 visas last year.

One of the biggest Indian companies using H-1B visas last year was Satyam Computer Services, based in Hyderabad. Its founder and chairman, B. Ramalinga Raju, is facing criminal charges in India, accused of inflating his employee rolls by more than 10,000 workers and falsifying accounts by more than $1 billion. The company is up for auction.

Indian companies’ heavy use of the visas has drawn accusations of fraud from some lawmakers. Senator Richard J. Durbin, Democrat of Illinois, and Senator Charles E. Grassley, Republican of Iowa, said they intended to introduce a bill this week that would impose stricter hiring terms for all H-1B visas and increase enforcement. The senators said they would not consider raising the numerical limits on the visas until loopholes they had identified were closed.

“With unemployment at rates higher than we’ve seen in decades, there is no shortage of people looking for work,” Mr. Grassley said Wednesday, “so companies should need less H-1B visas than last year.”

In January, in a move that unsettled the outsourcing industry, federal prosecutors in Iowa brought criminal charges against the Vision Systems Group, a New Jersey company that provides temporary information technology workers to companies in several states. The company is accused of seeking H-1B visas for workers for an office in Iowa that did not exist, and of paying the workers based on the prevailing wage in Iowa, which is lower than in many states where the immigrants actually worked.

Lawyers for Vision Systems asked the Iowa court on Wednesday to dismiss the case. “We don’t believe that bringing highly trained and highly productive people to work in the U.S. in an industry that is underserved by our own population is or should be a crime,” a lawyer for the company, Mark Weinhardt, said.

White House says U.S. needs H-1B visas to avoid 'competitive disadvantage'

H-1B visas necessary, Obama govt tells court.
The Barack Obama administration has told a court the previous government’s decision to extend the work permit for H-1B visa-holders was necessary to spare American companies “competitive disadvantage” they could have faced by losing skilled workers.

The March 23 submission before a Philadelphia court, in response to a lawsuit against the move, was the first indication of the new Democratic regime’s stand on the visa, popular among Indian professionals.

Acting assistant attorney-general Michael F. Hertz said had the Bush government not extended the work permit from one year to 29 months, some 10,000 students with degrees in science, technology, engineering and mathematics (STEM) would have had to leave America within 60 days.

It would have “adversely affected” the ability of US employers to “recruit and retain” skilled workers and created a “competitive disadvantage for US companies”, the government argued.

The matter had last year come up before a lower court in New Jersey which threw out the appeal filed by three US bodies, nine individuals and two students. The same petitioners approached the Third Circuit Court of Appeals in Philadelphia last month.

The government said the extension was necessary to retain talent. While it allowed skilled students to avoid the hardship of leaving the country to change their status, it gave employers ample time to file H-1B petitions on their behalf.

“As indicated in the IFR (Interim Final Rule), there is an important economic interest for the United States in keeping STEM graduates from going to other countries that are providing increased opportunities to these students,” the Obama government said in its petition.

“The IFR would help attract STEM students to the United States. Otherwise, the United States will lose skilled technical workers in great need by high-tech industries.”

Cognizant agrees to pay back-wages to H-1B visa employees in US

Software services provider Cognizant said it has agreed to pay $509,000 as back-wages to 67 employees who went on H-1B visa to the US, after the US Labour department asked it to do so.

This comes to about $75 a month for these 67 employees over the eight years in question. Between 2001-2008, Cognizant had 40,000 people in the US, including whose who went on H1-B visas.

In a release, the department said its Wage and Hour Division found that Cognizant did not comply with regulations related to paying computer professionals hired under the H-1B program the proper wages, failed to offer all H-1B workers equal benefits or eligibility for equal benefits, and failed to maintain required records.

H-1B is a professional visa and usually given for three years and extendable for another three, so it is effectively a six-year visa. IT companies vie for the majority of H-1B visas.

The Department of Labour reviewed all of Cognizant’s LCA or labour condition applications from 2001 to 2008 through a process launched a couple of years back.

“During the 8 years in question when Cognizant had over 40,000 employees at Cognizant US, it was determined that we had unintentionally differed from the H-1B required wage level in just 67 cases, or a meager 0.17% of our employee wage payments. Cognizant believes that these 67 individuals were already paid at or above the required wage, but to avoid any doubt, we are immediately paying back wages to them. Communication to that effect has been sent to the associates concerned,” Cognizant spokesperson said.

Issues over H-1B visas are not new to the IT industry. During the year ended March 31, 2008, Infosys voluntarily settled with the California Division of Labor Standards Enforcement toward possible overtime payment to certain employees in California, USA, for a total amount of Rs 102 crore ($26 million) pertaining to the last three years.

In June 2007, Patni Computer Systems agreed to pay more than $2.4 million to settle US federal allegations that 607 employees hired by the India-based technology services company to do computer work in 32 states in 2004 and 2005 were not paid prevailing local wages.

“Cognizant Technology Solutions has taken immediate steps to correct all identified violations and ensure future compliance,” said Joseph Petrecca, director of the Wage and Hour Division’s Northern New Jersey District Office. “This level of cooperation sets a standard for others in the industry.”

Given the increasingly protectionist tone in Washington, wages to H-1B employees are an important issue in outsourcing, especially at a time when the economy is shrinking and people are losing jobs. Traditionally, one of the key grouse of the anti-outsourcing lobby is that foreigners ready to accept low wages take away American jobs.

Infosys to apply for fewer H-1B visas

Infosys Technologies on Wednesday said it will apply for lesser number of H-1B visas this year. Last year the company had applied and received 4,500 of those visas, but this year it could be less than 3,000.

Infosys chief financial officer V Balakrishnan told Financial Chronicle that most other companies may also decide to apply for less. The H-1B visa allotment started on Wednesday. Every year, the quota gets exhausted within the first 2-3 days, but this time it may take longer.

“We have decided to cut down on the number of applications. This time it will be 25-30 per cent less than the previous yea,” Balakrishnan said.
Indian IT firms are facing an uncertain business environment globally. There is also the need to downsize onsite workforce as clients continue to ask for reduced billing rates. This has led to companies such as Infosys to apply for lesser number of visas.

“We want to assess the business environment and do it on an ‘as and when’ policy. We may not be required to utilise all the visas we receive, if the business environment is not conducive,” Balakrishnan said.

The Indian IT firms are looking at a business model that’s not just dependent on visas, but one that includes hiring local workforce and in near shore locations, the Infosys CFO added. Applying for lesser number of visas would mean lower costs and that would have a positive impact on first quarter margins.

The H-1B programme allows US companies to bring in foreign skilled workers when such skills are in short supply.

The US Citizenship and Immigration Services has said it would continue to accept applications beyond the five-day stipulated period if it does not receive adequate number of applications to meet the annual cap of 65,000. Of that 20 per cent goes to Indian IT firms.

Wells Fargo: May Cut Foreign Workers; Cites Political Pressure

Wells Fargo & Co. (WFC), one of the largest U.S. lenders, told employees this month that it's considering cutting foreign workers, citing political pressure stemming from the government's bailout of the banking industry, according to an internal email obtained by MarketWatch.

Wells Fargo & Co. is deciding on a “case-by-case basis” whether to renew the sponsorship of employees working in the U.S. on so-called H-1B visas, a spokeswoman said today.

The economic stimulus package passed in February makes it more difficult for banks that have received government aid to hire new foreign workers. But the San Francisco-based bank's policy applies to employees already working at the company. Wells acquired Charlotte's Wachovia Corp. last year.

H-1B visas allow U.S. companies to hire specialized workers, particularly in technology fields. Backers say the visas let employers tap needed talent, while critics say companies use them to hire less expensive workers from overseas.

Wells Fargo spokeswoman Mary Eshet said the company's “approach has always been to find the talent and skills we need in the United States whenever possible.” Less than .04 percent of the bank's 281,000 employees work under H-1B sponsorships.

How many workers will lose their jobs under the policy is unclear. One employee familiar with the policy said it was already affecting workers here in Charlotte. Business Web site Martketwatch today reported that some Wells employees have received e-mails from the company informing them that their visas will not be renewed.

"Due to the fact that we have and will be displacing numerous U.S. citizens in your same positions Wells Fargo has decided to enforce a policy that prohibits lines of businesses to file visa sponsorships for foreign nationals that would hold positions that could otherwise be held by qualified U.S. citizens,” an e-mail obtained by Marketwatch said.

Charlotte-based Bank of America Corp. has previously said it was rescinding job offers to students that required H-1B sponsorship. A spokeswoman declined to comment on whether current employees would be affected. The bank said less than 1 percent of its 301,000 employees require H-1B visas.

Wells has received $25 billion from the government's Troubled Asset Relief Program. Bank of America has taken $45 billion.

Related news also on portfolio.com

U.S. Job Losses Not Due to H-1B Visas: NFAP Report

New H-1B visa holders don't make much of a dent in the U.S. workforce, according to a report by the National Foundation for American Policy.

US lawmakers may be busy putting restrictions on the country's primary temporary work visa, H-1B, but new H-1B visaholders each year represent just seven in 10,000 civilian workers in the US, according to a report by an American public policy organisation.

As per the report by the National Foundation for American Policy (NAFP), 1,07,686 new H-1B petitions were approved by the US Citizenship and Immigration Services in 2008, including those exempt from being included in the H1-B quota of 85,000 visas annually. In comparison, the American civilian labour force stood at 154.6 million in 2008.

The US Senate recently cleared a bill that restricts hiring of H1-B visa holders by financial services firm receiving government bailout funds. The NAFP report proves that the US backlash against H-1B visa usage, led by senators Chuck Grassley and Dick Durbin, is uncalled for, according to the Indian IT industry. "There are over 5 million unemployed people in the US. How can 65,000 H-1B visa holders be held responsible for job losses?" said an executive at a large Indian IT firm that figured among the top 10 H1-B users.

The report also noted that Indian IT firms utilised only 11.9% of new H-1B petitions issued in 2008, contrary to popular perception in the US that these firms use up most of the visas.

Indian firms' usage of the visas declined by 27% between 2006 and 2008. H-1B visas bagged by Indian IT companies, including US-headquartered Cognizant which has a large presence in India, came down from 17,550, or 15.1%, of total H1-Bs issued in 2006 to 12,810 in 2008. Pointing out that market realities determine the demand for H-1B visas, NFAP said that companies didn't hire more H-1Bs in 2002 and 2003 when the cap was increased to 1,95,000 from 85,000. "Firms did not hire more H-1Bs in those years just because the cap was higher," the study said.

Despite the economic slowdown and a likely reduction in the number of applications, it's expected that the H-1B visa quota for 2010 will be exhausted within days when the process starts on April 1, on the back of pent-up demand.

In its recent meeting with US government representatives, Indian IT-BPO association Nasscom said that any protectionist measure by the world's largest economy would only prolong its recovery from recession. It offered to work with American policymakers on visa laws to plug loopholes.

"While the xenophobes go on their witch-hunt and blame immigrants for the loss of jobs, the best and the brightest are leaving the US and taking the economic recovery with them," says Duke University professor and Harvard researcher Vivek Wadhwa.

A recent report by Prof Wadhwa and his team found that Indian and Chinese professionals leaving the US are finding greater opportunities in their native countries than ever before.

New requirements for H-1B American visa applicants

Source:visabureau.com
The US Citizenship and Immigration Services (USCIS) announced changes to the requirements for H-1B American visa holders.

The H-1B visa allows foreign workers to live and work in the US on a temporary American visa, provided an American employer petitions the USCIS on behalf of the prospective employee to get the visa grant. The foreign worker must have been working in a specialty occupation and the employer (petitioner) must file a labour condition application before the visa can be processed.

The new requirement means that employers who receive funds through the Troubled Asset Relief Program or covered funding need to fill in the revised version of the Form I-129 when filing the Labor Condition Application.

The changes are the result of the new "Employ American Workers Act" (EAWA) introduced by President Obama this year, and are part of the new administration's attempts to protect the jobs of American workers from having foreign workers take their place.

All H-1B petitions filed on or after 17 February 2009 will be subject to this act, including those who are already H-IB status and have not started employment as of that date.

The EAWA does not apply to H-1B petitions for those already working in another category on a different America visa, or those who are extending their H-1B visa to stay with their employer.

The next lottery round of petitions will be starting 1 April for the 2010 fiscal year.

In related news, Network World News reports that legal experts are expecting that fewer H-1B visa petitions will be sent for the 2010 lottery because of the new EAWA requirements and the current economic conditions. With 65,000 visa places to be filled, plus an extra 20,000 H-1B visas for American university graduates, experts are predicting the H-1B visa program will not fulfil its cap, and survey results have supported the prediction.

According to the American Immigration Lawyers Association (AILA) survey, nearly three quarters of those surveyed expect there to be fewer petitions for the American visa type this year.

"The survey shows that fewer companies are going to file H-1B petitions for a number of reasons, but the main reason is the current economy," says Eleanor Pelta, AILA official and Morgan, Lewis and Bockius immigration partner in Washington D.C.

"That means the chances for many companies to get an H-1B are better. In the past, the demand was more than double the available visas so hiring a foreign national was really a crapshoot for most companies."

25% of H-1B visas to US given by Chennai consulate

Consul General Andrew T Simkin said as there was a provision to apply for a Green Card after residing for six years in the US, some H-1B visa holders used the provision to settle in America.

One fourth of H-1B visas to the US from India are issued by the US Consulate in Chennai, which caters to the four southern states, Consul General Andrew T Simkin has said.

On denial of H-1B visas, he said as there was a provision to apply for a Green Card after residing for six years in the US, some H-1B visa holders used the provision to settle in America. “Only when we suspect that a person will settle in America, we reject the visa application,” he added.

Stating that India and America had many things in common, he said “there is tremendous scope for business between the two countries.”

On the problems relating to stringent conditions of the Food and Drug Administration (FDA) faced by India’s processed food exporters, he said there was no scope for relaxing the conditions.
But FDA would soon expand its wings to countries including India, so that exporters could understand the regulations and start exporting more by meeting the conditions.

Domestic IT cos may seek fewer H1Bs this year

Source: The Hindu Business Line
An uncertain business outlook coupled with pressure to trim onsite workforce as clients ask for price cuts could prompt Indian outsourcers to apply for lesser number of HI-B visas for 2009.

The H1-B programme allows US companies to bring in foreign skilled workers when such skills are in short supply. The US Citizenship and Immigration Services (USCIS) will take H1-B applications for the next fiscal from April 1-7.

“I would think so: the number of applications will be substantially lower,” said Mr Ganesh Natarajan, Chairman of Nasscom, the apex industry body of software services companies, stating that it would be difficult to put a figure. “The duration for receiving applications is expected to be longer,” he said.

The USCIS recently said that it would continue to accept applications beyond the five-day stipulated period if it does not receive adequate number of applications to meet the annual cap of 65,000. Generally, the quota gets exhausted within the first two days.

H1-B recipients
Though Indian firms have been among the top H1-B recipients, they do not disclose the number of applications filed. In 2008, four of the top five H1-B recipients were Indian IT firms – Infosys Technologies, Wipro, Satyam and TCS, while the fifth was Microsoft. Infosys topped the 2008 list with 4,559 visas followed by Wipro (2,678), Satyam (1,917) and TCS (1,539).

“We will apply for H1-B based on our business requirements. It will be lesser than last year,” an official of a large IT services firm said.

Shrinking volumes
Faced with shrinking volumes and with new business hard to come by, as US customers reel under the impact of the economic crisis, Indian IT companies have resorted to reducing their onsite workforce in recent months.

“I don’t see that rush to grab visas this year,” said Mr Avinash Vashistha, CEO of Tholons Inc, an offshore advisory firm that helps clients with their outsourcing strategy.

Explaining why there could be a drop, Mr Vashistha said the Indian vendors are increasingly looking at a business model that’s not dependent on visas and includes hiring local workforce and in near shore locations.

Lower costs
Also, these vendors are keen on moving work offshore while agreeing to client requests for price cuts. Further, companies have significantly reduced their staff augmentation because of the availability of skilled resources locally, Mr Vashistha said.

Applying for lesser number of visas would mean lower costs and that would have a positive impact on their first quarter margins, said Mr Harit Shah, analyst at Angel Broking Ltd.

“The chances of getting a visa could be higher this year as the number of applications would be less and the smaller companies could benefit,” Mr Natarajan said.

MindTree CFO, Mr Rostow Ravanan, said the company’s business model uses less US visas and that they would be applying for fewer H1-B permits this year.

TCS unaffected by H-1B visa restrictions

Tata Consultancy Services (TCS), India’s largest exporter of software services, said on Monday that the restrictions on H-1B visa norms has had no impact so far.

“The restrictions on H-1B visa employees has not affected us so far,” said chief operating officer and executive director N Chandrasekaran. When asked if it would impact his businesses in the future, he said, “We will continue to monitor the developments on this issue.”

Industry analysts also believe that it is unlikely to have any major impact. “The Indian IT sector has indeed seen minimal impact due to H-1B restrictions. It is difficult to assess what the impact would be in the future,” said Apurva Shah, head of research for Prabhudas Lilladher, a Mumbai-based brokerage firm. “In any case, if at all there is an impact, it would be minimal, because Indian companies usually have more H-1B visa holders than required,” he added.

In the first week of March, TCS had announced that it would ask one per cent of its workforce to leave on the basis of non-performance. Commenting on that, Chandrasekaran added, “We do that every year. We have appraisals twice a year, and on the basis of their performance, we offer help to outplace them.”

He said his international clients are looking at offshoring more work to cut costs. TCS has made offers to around 24,000 trainees for the coming year. “We will be honouring all these offers,” he said. “Our employee utilisation rates have gone up to 79 per cent. We are comfortable to maintain it at that level,” he added.

TCS has also seen discretionary spending by its clients under stress. “Discretionary spending has been under stress. There will be more clarity on this from our clients in the coming quarters, hopefully by the end of the first quarter,” he said.

USCIS Issues 2009 H1-B Visa Plans

Restrictions for H1-B visa program imposed by Employ American Workers Act not likely to effect Silicon Valley's lust to hire foreign guest workers on a temporary basis, but potential legislation from Senators Charles Grassley and Richard Durbin could limit the practice.

The USCIS (U.S. Customs and Immigrations) said March 20 it would begin accepting H-1B visa applications April 1 -- as normal -- but with the various terms and conditions related to the recently approved EAWA (Employ American Workers Act) imposed. The changes are not likely to effect the Silicon Valley but will severely restrict banks and other financial institutions that heavily rely on the H1-B program.

The new law prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received stimulus funds from Congress. The law took effect Feb. 17 and applies to any "hire" taking place before Feb. 17, 2011.

US sets new H-1B hiring norms for companies on bailout programme

The US Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Programme or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.

The additional measures for hiring foreign specialists under the H-1B visa work programme will make it more difficult for the firms receiving government bailout to hire overseas workers and deal a body blow to Indian professionals seeking employment in the US.

These measures come about 10 days before the US Citizenship and Immigration Services (USCIS) starts accepting petitions for new H-1B visas for the fiscal year beginning October 1, 2009.

The new `Employ American Workers Act,' (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on 17 February 2009, was enacted to ensure that companies receiving covered funding do not displace US workers, a government release said.

Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an `H-1B dependent employer.' All H-1B dependent employers must make additional attestations to the US Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any labor condition application (LCA) and/or H-1B petition filed on or after 17 February 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before 17 February 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorised category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising the application form (Form I-129) for non-immigrant worker to include a question asking whether the petitioner has received covered funding. USCIS will post this revised form on the USCIS Web site in time for the next cap subject H-1B filing period that begins on April l, 2009.

''While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010,'' the release said.

USCIS, however, said H-1B petitions that are already prepared for mailing using the previous Form I-129 (January 2009 version) need complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package.

A valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the labor condition application does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B

Silicon Valley Wants More Skilled Foreign Workers; H-1B Issue Remains Big

Source: semiconductor.net
Despite steep job losses, Silicon Valley firms continue their long quest to allow more skilled foreigners to work in the U.S.

The high-tech hub lost 15,600 jobs in December alone, 1.3% of its 1.2 million total jobs, but executives and officials say that hasn't lessened the need for highly skilled workers. The federal H-1 B program gives temporary visas to skilled foreign workers like engineers and scientists, but caps the number at 85,000 per year.

And even with today's high unemployment, when it might be easier for companies to find skilled U.S. job hunters, there's a push to end the cap.

"We're not in favor of controls at all. It should be wide open, the more the merrier," said Russell Hancock, president of Joint Venture Silicon Valley, a large public-private group supported by many of the region's tech companies.

In fact, the situation has been exacerbated by the economy. A report this month by the Kauffman Foundation says skilled immigrants are going home in large numbers, seeing less entrepreneurial opportunity in the recession-wracked U.S. The report is titled "America's Loss."

Executives say U.S. colleges and universities don't graduate enough tech workers to meet the needs of high-tech companies. As a result, Silicon Valley has long relied on skilled foreign workers to fill the gap.

An H-1 B visa can lead to a "permanent residence" green card visa if a foreign worker gets a permanent job with an American company.

Half of the nation's H-1 B visa holders, according to trade group Tech-America, are tech workers. Tech-America members include many of the valley's tech companies, such as Intel, Apple and Hewlett-Packard.

"H-1 Bs and green cards remain very important," said Jeff Lande, executive vice president of TechAmerica. "The economy has gone negative, but companies still need to have access to certain skill sets. If they can't find them locally, they need to look elsewhere."

Vivek Wadhwa, a senior research associate at Duke University's Pratt School of Engineering and one author of the "America's Loss" report, says about half of Silicon Valley tech companies were founded or co-founded by immigrants. He names such companies as Google, Intel, eBay and Yahoo.

Even before the recession, a large number of highly skilled immigrants had started voluntarily returning to their homes in countries like India and China, where they see better opportunities than they see here, he says.

"It's a problem when such people are leaving on their own, or being forced to leave because they are laid off," he said. "The best and brightest are seeing more opportunity elsewhere."

Many Valley companies agree.

Sunnyvale, Calif.- based flash memory chipmaker Spansion is cutting jobs and has filed for Chapter 11 bankruptcy reorganization, but it's not looking to shed its H-1 B employees, says Ajit Manocha, chief operating officer.

Spansion employs 75 H-1 B visa workers among its 5,700 workers.

As the company goes through bankruptcy, it will focus on worker skills, not nationalities, he says.

"We look at what talent we need to come out of this bankruptcy process that will make us a stronger company," Manocha said. "If someone with an H-1 B visa has the right talent, we want to keep that person."

It's a Terrible Time to Reject Skilled Workers

There was an interesting article in today’s Wall Street Journal:

Don't we want the world's brightest fixing our banks?
Thanks to the Employ American Workers Act (EAWA), which was folded into the stimulus bill, it's become harder for companies getting government support to hire skilled immigrants with H-1B visas -- they'll have to show they haven't laid off or plan to lay off an American from a similar occupation.

Supporters say the law will help U.S.-born workers and stimulate our economy, but this is just wrong. The economy is not of fixed size, in which more foreign-born workers necessarily mean fewer U.S. workers. Productive foreign-born workers can help create more jobs here. Keeping them out damages us.

Start with the damage to companies that have received money from the Troubled Asset Relief Program (TARP). Over 400 firms now face a sharply curtailed talent pool, precisely when they need visionary talent to rebuild amidst the world's most severe economic crisis in decades. Without the best talent, ultimately they'll create fewer jobs.

There is also indirect, unforeseen damage that's beginning to appear in higher education. In 2007, the U.S. exported $15.7 billion in educational services and, consistent with our strong comparative advantage in education, ran a trade surplus of $11.2 billion. America has built the world's most dynamic university system largely by welcoming foreign scholars and students. This year at our own Tuck School of Business in Hanover, N.H., 31% of tenured and tenure-track professors and over 35% of MBA candidates are foreign born.

That dynamism is now in question. Here at Tuck -- and at many fellow business schools as well -- several foreign-born students had their job offers rescinded in response to EAWA. If foreign-born students cannot legally work here after earning their degrees, fewer will enroll.

Foreign-born MBA candidates often choose to study in America because they aim to apply what they learn from our world-class schools right here. The same is true across the academic fields: According to the National Science Foundation, 42% of Ph. D. science and engineering workers in the U.S. today are foreign born.

A reverse brain-drain caused by EAWA means that Tuck's U.S.-born students will endure a poorer classroom environment. Tuck and other schools will face a less-dynamic campus -- and eventually fewer jobs here as a result. Some schools will suffer declining enrollments, with commensurate declines in overall U.S. higher-education exports.

And where will all these foreign-born students go? To countries whose leaders recognize their job-creation potential and shape policy accordingly. For example, current British immigration policy welcomes an unlimited supply of the world's best and brightest business minds. Since 2004, the U.K. Highly Skilled Migrant Programme has maintained a list of 50 of the world's top business schools. Anyone who earns an MBA from a business school on this list is automatically eligible to work in the U.K. for at least one year.

Quite apart from their contributions to higher education, skilled immigrants have long contributed to American jobs and standards of living. They bring ideas for new technologies and new companies. And they bring connections to business opportunities abroad, stimulating exports and affiliate sales for multinational companies.

Turning away skilled immigrants will hurt, not help, the U.S. It is unlikely that supporters of the Employ American Workers Act saw the link from jobs at companies receiving TARP money to enrollments at American universities and graduate schools. But we ignore at our peril the indirect yet significant harm done by laws that try to wall America off from the global economy.

Today U.S. colleges and universities are suffering. Who will be next? And who in Washington will have the wisdom and courage to change course?

Don't shut foreign tech workers out

Source: CNNMoney.com
The recession has renewed attempts to restrict visas for skilled immigrant workers who are the lifeblood of Silicon Valley.
(breakingviews.com) -- The recession's damage to Silicon Valley goes beyond falling stock prices and depressed profits. The downturn has renewed attempts to restrict visas for skilled immigrants. If anything, the U.S. should consider slackening its rules instead.

Granting more visas for high-tech immigrant workers, known as H-1Bs, was a hot topic before the economy went into reverse. Now they're perfect political toast.

The U.S. stimulus bill included an amendment forbidding any institution receiving TARP money from hiring H-1B workers. Senator Chuck Grassley, one of the amendment's authors, sent a letter to Microsoft (MSFT, Fortune 500) telling the company to fire foreign workers before American citizens.

Now Grassley and Senator Dick Durbin want to add further restrictions to the H-1B visa program. Their legislation aims to limit the number of workers that outsource companies, such as India's Infosys (INFY), bring to the U.S. If passed, the provision would make it harder for all companies to hire foreign workers.

The legislation would be particularly toxic for Silicon Valley. H-1B visas may be temporary and forbid holders from working in self-employment, but the benefits to the U.S. are still high.

A 1% rise in the share of immigrant college graduates in the population increases the total number of new patents by 6%, according to a study by Jennifer Hunt of McGill University and Marjolaine Gauthier-Loiselle of Princeton University.

The benefits are long-lasting too. Many visa holders eventually settle permanently in the U.S., make money and pay lots of taxes.

Indeed, foreign workers found 52% of all technology startups, according to Duke University professor Vivek Wadha. Some of them, or their offspring, have even created giants.

Google (GOOG, Fortune 500) co-founder Sergey Brin is a native of Russia. Andy Grove, a Hungarian-American, was Intel's (INTC, Fortune 500) third employee. And Ebay (EBAY, Fortune 500) was started by French-born Iranian-American Pierre Omidyar.

If the U.S. wants more Silicon Valley powerhouses, loosening the H-1B rules would be a good place to start. True, only 65,000 visas are issued each year. And hard times reduce immigration, so the damage might not be immediately felt.

But placing artificial constraints on the flow of highly educated and skilled workers is short-sighted. When the global economy recovers, the U.S. should want the best minds available to capitalize on it.

FAQ: What happens to H-1B in down economy?

Source: NetworkWorld.com
With more regulatory hoops to jump through, U.S. companies may reconsider bringing H1-B workers on board, experts say. Here are answers to some common questions about how the H-1B visa program works, why it's so controversial, and how the poor economy is complicating H-1B hiring.

What is the U.S. H-1B visa program?
The H-1B Specialty Occupation Visa program is a method for American companies to recruit and hire foreign nationals and students to work at their companies in the United States. The program requires employers to show they need to hire the foreign candidate to fill a skills gap within their organization.

What is the duration of an H-1B visa?
Visa holders can work in the United States for up to six years before having to renew.

How many available visas are made available under the program?

The annual cap for H-1B visas is currently set at 65,000. Another 20,000 visas are made available via an exemption for recipients of a graduate degree from a U.S. university. (Read a story about a study saying Microsoft is the biggest user of this program.)

What occupations typically are considered for H-1B visas?
The program calls for specialty occupations that can range across industries, but some core areas include IT, banking, accounting, computing, finance, telecommunications, legal, engineering, networking, healthcare/medical, teaching and hospitality.

What requirements must be met for a U.S. company to hire a foreign national?
Companies looking to hire a foreign national on a new H-1B visa must ensure the potential candidate: has entered the United States on a valid visa; did not overstay time spent in the United States on the visa; has a bachelor's degree from a U.S. or foreign university, or 12 years of equivalent experience in the field; has a job offer with a U.S. company; submits the application on April 1, 2009 to be eligible for a 2010 visa.

What restrictions have been added in 2009?
As part of President Barack Obama's stimulus package, a provision requires companies having received funds from the Trouble Assets Relief Program (TARP) and having more than 15% of their workers on visas (dubbed "H-1B dependent" in the bill) to prove they have diligently recruited American workers for the position and that in hiring a foreign national they are not replacing a U.S. citizen.


What type of consequences could there be to putting more restrictions on H-1B visa applicants?
Industry watchers expect if the controversy continues that fewer foreign nationals will consider an education in the United States, potentially resulting in less tuition money being paid and economically impacting American universities. A March 2009 survey of 1,000 Indian and Chinese professionals conducted by Duke University and the University of California, Berkeley, found that several respondents left the United States because of the lack of job opportunities here.

"A majority of respondents indicated that they would at least consider returning to the U.S. if they could get a visa and a good job. … Fewer than one-third of respondents had permanent residency status, however, and it is possible that, though visa issues may not be perceived as a major reason to leave, job difficulties resulting from restrictive visa policies could be playing a major role in spurring the exodus," the report "America's loss is the World's Gain" reads.

How does the U.S. financial fallout impact H-1B visa program?
There are no legal requirements for most companies (those that are not considered H-1B dependent) to hire U.S. workers over H-1B candidates or to terminate foreign nationals before American workers during layoffs. But considering the number of financial institutions receiving TARP funds, legal analysts expect fewer U.S. companies to be sponsoring H-1B candidates in the coming year.

"For a lot of companies, the provisions in the stimulus package mean they won't be filing for any new H-1B positions; 326 banks received TARP money and the H-1B dependent provisions are much more onerous and add to an already complex process," says Peter Roberts, partner at corporate immigration law firm McCarter & English.