Expanded H-1B visa program hits snag

Date: Wednesday, April 20, 2005 11:47 PM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
April 20, 2005 No. 1237

Last year Congress authorized an additional 20,000 more H-1B visas on
top of the 65,000 per year already permitted. If that wasn't bad
enough, the U.S. Citizen and Immigration Services is now admitting that
they accidentally issued an additional 10,000 extra H-1B visas in some
kind of bureaucratic mistake. They aren't taking the visas back to
correct this fiasco - instead they are just going to say "NEVERMIND!"
and issue the visas anyway. Their CYA strategy seems to be to pretend
the problem never occurred.

Since USCIS admits to a mistake, they should deduct their mistake from
the 20,000 and only issue 10,000 more visas, but it's not clear that's
what they are doing. Instead they might issue 30,000 visas over the
limit of 65,000 for a total of 95,000 H-1Bs for 2005.

The USCIS is being silent on what they will do in the future to avoid
these mistakes in 2006, and they haven't made it clear how many visas
will be issued.

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http://www.mercurynews.com/mld/mercurynews/11417216.htm

Posted on Sun, Apr. 17, 2005

Expanded H-1B visa program hits snag

REQUIREMENT FOR ADVANCED DEGREE DROPPED

By Karl Schoenberger

Mercury News

Bureaucratic bungling has cast a cloud over implementation of federal
legislation intended to help Silicon Valley tech companies solve some
of their recruitment problems by expanding the controversial H-1B guest
worker program.

Congress passed a measure in November allowing an additional 20,000
H-1B visas above the annual 65,000-visa cap on the condition that the
new visas be reserved for applicants with master's or doctoral degrees
from U.S. universities. The law was a compromise between opponents of
the H-1B program and businesses that contend that U.S. industry suffers
from a shortage of highly skilled labor.

But the federal agency in charge of issuing the visas shocked and
confused both sides in the debate by announcing on March 8 -- the day
it was supposed to issue rules on how to apply for the new visas --
that there would be a delay in implementation. More important, it said
applicants would not need advanced U.S. degrees to qualify.

``It was mind-boggling,'' said Sandra Boyd, chair of Compete America,
the lobbying group that pushed hardest for the legislation's passage
and has Intel, Oracle and Sun Microsystems on its steering committee.
``The agency changed the rules for no apparent reason, and disrupted
the recruitment planning of a lot of our member companies.''

Tracy Koon, a spokeswoman for Intel, said the company was very active
in getting the advanced degree requirements in the H-1B bill, and was
disappointed with the reversal.

``We were taken aback,'' Koon said ``Our hiring strategy at this time
is to look for a high level of technical capability, and when we look
at master's degree programs we find fewer and fewer U.S. citizens. So
we're waiting to get this clarified.''

The U.S. Citizen and Immigration Services, the agency that administers
the H-1B program, has not issued a clarification of its March 8
bombshell. Chris Bentley, spokesman for the agency, said officials at
CIS, the Department of Homeland Security and the White House Office of
Management and Budget were meeting to review implementation of the law.

``There have been issues of interpretation of the law involved here,''
Bentley said. ``But when it comes out, the guidance will be precise.''

It seemed likely the requirements for advanced U.S. degrees will be
reimposed, at least temporarily, after Rep. Lamar Smith, R-Texas -- a
key sponsor of the original legislation -- held talks to sort things
out with Michael Chertoff, secretary of Homeland Security. CIS is an
agency within the Homeland Security Department.

``The secretary promised the congressman that the rules consistent with
our interpretation of the law will apply for 2005,'' Smith's office
said in a statement. ``The secretary is currently reviewing how the law
will pertain to 2006 and the congressman is looking forward to his
reply.''

Too many visas issued

Behind the snafu, critics of the agency say, is an administrative error
that led to issuing 10,000 too many H-1B visas for fiscal 2005, busting
the legal cap of 65,000. CIS may have tried to conceal its mistake by
using the new batch of 20,000 elite visas to absorb the ordinary
applicants, critics charge.

CIS allegedly justified this sleight of hand after calculating that at
least 20,000 of the applicants already admitted under the 65,000 visa
quota were believed to hold U.S. master's degrees.

Bentley acknowledged the extra 10,000 H-1B visas were a problem the
agency was dealing with. He said the error was the result of estimating
the number of final visa approvals generated out of a larger batch of
applications.

Past experience, he said, led the agency to believe that if they
approved 100,000 applications, there'd be a fallout and only 65,000
visas would be issued.

Bentley had no comment on allegations the agency tried to fold the
extras into the new batch of 20,000 by voiding the education
requirement.

``The USCIS has a fundamentally flawed control system,'' said Ron Hira,
assistant professor of public policy at Rochester Institute of
Technology and co-author of the book ``Outsourcing America.'' ``They
shouldn't rely on guesswork when they comply with the law that caps the
number of H-1B visas, or try to cover their tracks like this when they
make mistakes. The cap is the only thing that really protects the
interests of American workers.''

Cap exceeded in '99

Hira pointed out that the agency surpassed the cap at least once
before, in 1999, and resolved the problem by moving the overflow into
the quota for the following year.

Sen. Charles Grassley, R-Iowa, scolded USCIS Director Eduardo Aguirre
in a March 7 letter after learning about the agency breaking the H-1B
cap.

``It discourages me to hear that Congress's limit may have been
ignored'' Grassley wrote. ``I expect a full explanation as to how the
U.S. Citizenship and Immigration Service approved more than the number
of visas allowed, and what plan is in place to make sure this doesn't
happen again.''

Grassley's staff said they haven't received a reply.

Demand for H-1B visas, especially by Indian software contractors, is so
pent up that the CIS stopped taking applications for the 65,000 quota
on the first day of the program year on Oct. 1. Lack of availability of
H-1B visas has led the so-called body shops to turn to the L-1 visa,
which allows an employee transferred within a multinational company to
work in the United States.

The H-1B visa is used not only by high-tech companies but also in a
variety of fields such as health care. Hospitals, for example, use them
to hire nurses in the Philippines and other countries to fill a
shortage in the United States. University research laboratories use
H-1Bs when they retain post-doctoral fellows.

The additional 20,000 visas for applicants with U.S. advanced degrees
was originally proposed in the H-1B Visa Reform Act of 2004, a House of
Representatives bill that was amended to the Omnibus Appropriations Act
for fiscal 2005, which President Bush signed on Dec. 8.

Contact Karl Schoenberger at kschoenberger@ mercurynews.com or (415)
477-2500.

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