Where H means away-from-home

Date: Tuesday, November 19, 2002 1:32 AM

H-1B and JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

The history of H-1B isn't the most alarming thing about this article. Here
is the real clincher: "Such one year extension can be obtained for unlimited
times till the Green Card Petition is pending. This law also applies to
people who have left the US or have adjusted to another status in the US."
In other words, H-1B has now become a de-facto permanent visa.

So how was Bush able to slide this through Congress without controversy and
below the radar screen of immigration watchdog groups like FAIR, CIS, and
NumbersUSA? That's a question that needs to be answered - especially since
it seems that the only ones that haven't heard about this are American
voters.

http://economictimes.indiatimes.com/cms.dll/xml/comp/articleshow?artid=28492700

The Economic Times Online
Printed from economictimes.indiatimes.com > The Sunday ET > The Global
Indian

Where H means away-from-home
SUDHIR SHAH

[ SUNDAY, NOVEMBER 17, 2002 12:40:10 PM ]

The issue of increase in the H1B visa cap which goes down to 65,000 from
October 2003 may not yet have been dealt with. But there’s definitely good
news for H1B visa holders in the US.

AS of now, a H-1B visa holder ,upon the expiry of the six year period for
which the visa is valid, has to return to the home country and must reside
abroad for one year before they can re-enter the US.

Now, a new law changes that and permits extension of the H-1 status beyond
the period of six years for people with pending labour certification.

Historically, the US had no Immigration Law restricting the entry of
professionals till 1891. The first attempt to put restrictions on the import
of labour occurred in that year with the enactment of the ‘Anti-contract
Labour Law’.

Later, its provisions were included in “The Immigration Act of 1917”. The
objective of the anti-contract labour law was to end the practice adopted by
some US employers of importing foreign workers to break strikes. This also
adversely affected the wages and working conditions of US workers.

The Immigration Act of 1917 did not bar all contract labourer. Its fifth
proviso exempted ‘professionals’ and “certain other workers’.

After the enactment of Immigration and Nationality Act of 1952 procedural
guidelines were issued by Immigration and Naturalisation Service which
provided that a person could qualify for H-1 status through a high level of
education.

H-1 category visas were at this stage pre-dominantly used by alien artist
and entertainers. Till as late as 1990 there were no restrictions on the
numbers of H-1 visas which could be issued in a year.

In 1990, the H-1B category was for services in a ‘specialty occupation’ and
then a quota restriction of 65000 H-1B visas per fiscal year (from October
to September) were introduced.

To qualify for an H-1 B category of visa the alien worker is required to
possess a bachelor’s or higher degree to fill a position, which essentially
needs a graduate.

The procedure required to be followed is filing of a labour condition
application by the US employer, providing particulars of the proposed
employee and conditions of the employment with a specific statement that the
alien worker is not called to displace any existing worker or to break a
strike and the wage which would be paid to him would be at the prevailing
market rate.

After filing such labour condition application the US employer has to file
H-1B petition with one of the four INS Service Centers in whose jurisdiction
it is carrying on its business.

Along with the petition, a comfort letter containing particulars of the
employer, employee and the job description has to be furnished.

Copies of testimonials and other supporting documents are also required to
be submitted. Once the petition is accepted, the employee has to apply at
the consulate in their home country for H-1B visa and appear for an
interview.

If approved the candidate is granted an H-1B visa to travel to the US and
work there. H-1B visa initially may be granted for three years, which may be
extended for a further three years. It cannot be extended beyond six years.

The yearly quota limit, which was 65000 in 1990 was increased in 1999 for FY
1999 and FY 2000 to 1,15,000. For FY 2001 it was to be reduced to 1,07,500.

However, in October 2001 the limit was increased for the next three years to
1,95,000. In FY 1999 the cap of 1,15,000 had reached to its full capacity
within the first six months by the end of April 1999.

Likewise, in FY 2000 the cap was reached by the end of March 2000 itself.
Since then recessionary trends in the US and the events of September 11,
2001 has reduced the demand of alien specialist and the quotas for the FY
2001 and FY 2002 were not completely exhausted.

It is, however, predicted that very soon there would be a demand for
specialty occupation workers in US once again and the quota of H-1B visa
which would be reduced to 65000 from October 2003 would be inadequate.

An H-1B visa holder upon expiry of the six year period has to return to the
home country and must reside abroad for one year before he can re-enter the
US.

However, almost all H-1B workers invariably apply for green cards. Due to
the non-availability of the quota number required to obtain green card and
the procedural delays such applications take years to decide.

During that period, the H-1B worker, upon completion of the six years
period, is obliged to return to the home country. This causes inconvenience
and hardship to the alien H-1B worker as well as to the US employer.

This situation has now changed. On Saturday, November 2, 2002, President
Bush signed Bill No. HR2215 into law. It permits extension of H-1 status
beyond the period of six years for people with pending labour certification.
An increment of one year at a time is now permitted.

Such one year extension can be obtained for unlimited times till the Green
Card Petition is pending. This law also applies to people who have left the
US or have adjusted to another status in the US.

If the application for green card made in Form I-140 or Form I-485 or labour
certification is denied, the H-1B status will end. The new law is a gift to
thousands of Indians working in the US in H-1B status who otherwise would
have been obliged to return back to India during the pendency of their green
card applications.

Now they can stay in the US and work on H-1B status till their applications
for green cards are decided.

This law also helps alien physicians who are working in the US on J-1 visas.
A J-1 visa holder normally has a condition attached to it, which makes it
obligatory for the visa holder to return to the home country upon the expiry
of the period of J-1 visa.

They are then obliged to remain in his home country for two years, during
which time he is not allowed to re-enter the US on any category of visa.

The “Conrad State 20 Program” which allowed J-1 visa holder physicians,
willing to work in unserved area, to obtain a waiver from the said two year
home residency requirement had come to an end. By the new law the Conrad
State 20 Program has been extended till 2004 and the number of waiver for
participating state is increased from 20 to 30 per year.

Though very insignificant in number the extension of this programme will
provide relief to Indian physicians working in the US on J-1 visa.

Signed at the dawn of Diwali, the new law comes as a gift to specialty
workers and physicians in the US on H-1B and J-1 status.

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