new H-1B regulation is a softie
new H-1B regulation is a softie
Date: Monday, March 31, 2008 5:58 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1847 -- 3/31/2008 >>>>>
Lately I have received lots of emails from people who say that the USCIS is
going to finally crack down on bodyshops. As the theory goes, Indian owned
bodyshops routinely file multiple H-1B applications for the same worker in
order to game the H-1B lottery at the end of the fiscal year. I'm not sure why
Indian bodyshops get most of the blame for this type of behavior -- perhaps
it's just another one of those urban legends. The truth is that there are
thousands of U.S. owned companies that hire H-1Bs and they are just as
unscrupulous, and another misunderstood fact is that many Indian owned
bodyshops are opposed to allowing mulitiple filings because they feel they
lose out to the big ones like Tata or Infosys:
Apex software body Nasscom welcomed the move to streamline
the H1B visa process, saying it would eliminate unnecessary
malpractices by fly-by-night operators that deny opportunity
to genuine applicants.
Well, folks, the theory that bodyshops routinely game the system may be true,
and it may be true that lots of other shady operators are doing the same, but
this rule isn't going to stop the practice and here are three reasons why:
1) The number of multiple filings that are detected by the USCIS are very low
-- which implies that it either almost never happens or that it's rarely
detected. Several news articles about this rule reported that last year there
were about 500 multiple filings. I didn't believe the number was that low, so
I called the USCIS and verified it for myself. The representative I talked to
said that this regulation was not put into place because of scientific
evidence that multiple filings were a major problem
-- it was done just as an administrative gesture to make sure the playing
field was evened out. All of this means that despite the media buzz you see
about this, the new regulation from the USCIS accomplishes nothing.
2) Bodyshops won't get caught, even if they do file multiple applications.
That's because the automated scanners that are used to enter H-1B petitions
can easily be spoofed by merely specifying trivial differences in the job
title; like for instance they could say they need a "Java Programmer" and a
"Java Web Programmer, and to make it even more difficult to detect they could
list starting salaries that are a dollar or two different. Those may seem like
two different positions to the USCIS computer but they are one and the same to
the employer. Another obvious way to spoof the scanners would be to specify
the same job title in two different cities where the company is located
because nobody tracks where H-1Bs go after they enter the U.S.
3) Last year the USCIS cutoff for filings was for about 150,000 petitions.
If this rule had been in affect last year, only 0.3% of the filings would have
been rejected. Such a miniscule number of rejections won't even be noticed
since employers are standing in line to scarf up any visas that become
available. Go to this web page for more specifics on the number of petitions
in 2007:
http://www.uscis.gov/files/pressrelease/H1BFY08Cap040307.pdf
So, what is the worst thing that could happen to a company that is caught
violating the regulation? They will lose the filing fee of $1,300, which is a
mere slap on the wrist. A penalty that light is unlikely to deter those that
wish to game the system, especially considering they would be very unlucky to
get caught.
Materials included below
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcb76962447c8110VgnVCM1000004718190aRCRD&vgnextchannel=6
8439c7755cb9010VgnVCM10000045f3d6a1RCRD
USCIS Announces Interim Rule on H-1B Visas
http://www.nydailynews.com/money/2008/03/24/2008-03-24_rules_tighten_for_work_visas.html
H-1B visas let foreigners with valued skills come to the U.S. to work. Last
year, 133,000 applications were submitted.
http://pubweb.fdbl.com/news1.nsf/9abe5d703b986cff86256e310080943a/cd3604a32e8452d3852574110063972d?OpenDocument
USCIS Will Prohibit Multiple H-1B Filings By One Employer for a Single Foreign
National
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9067158&taxonomyId=14
U.S. worried that high H-1B demand may tempt some to 'game' visa lottery
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http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fcb76962447c8110VgnVCM1000004718190aRCRD&vgnextchannel=6
8439c7755cb9010VgnVCM10000045f3d6a1RCRD
USCIS Announces Interim Rule on H-1B Visas Rule Modifies Selection Process and
Prohibits Multiple Filings
WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) transmitted an
interim final rule to the Federal Register today that prohibits employers from
filing multiple H-1B petitions for the same employee. These changes will
ensure that companies filing H-1B petitions subject to congressionally
mandated numerical limits have an equal chance to employ an H-1B worker. To
ensure a fair and orderly distribution of available H-1B visas, USCIS will
deny or revoke multiple petitions filed by an employer for the same H-1B
worker and will not refund the filing fees submitted with multiple or
duplicative petitions.
This rule does not preclude related employers (such as a parent company and
its subsidiary) from filing petitions on behalf of the same alien for
different positions, based on a legitimate business need. The interim
final rule becomes effective upon publication in the Federal Register.
Last August, President Bush announced that the Administration would be
undertaking a series of immigration and border security reforms. The changes
to the H-1B filing process under this rule are an important part of that
initiative.
On April 1, 2008, employers may file petitions requesting H-1B workers for
fiscal year 2009 employment starting on October 1, 2008. For fiscal year
2009, Congress has set a limit of 65,000 for most H-1B workers.
Additionally, the first 20,000 H-1B workers who have a U.S. master s degree or
higher are exempt from the cap. Under current procedures, which are not
changed by this rule, once USCIS receives 20,000 petitions for aliens with a
U.S. master s degree or higher, all other cases requesting the educational
exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached
for a fiscal year, USCIS will announce that the cap has been filled and reject
further petitions subject to the cap.
This rule also stipulates that if USCIS determines the number of H-1B
petitions received meets the cap within the first five business days of
accepting applications for the coming fiscal year, USCIS will apply a random
selection process among all H-1B petitions received during this time period.
If the 20,000 advanced degree limit is reached during the first five business
days, USCIS will randomly select from those petitions ahead of conducting the
random selection for the 65,000 limit. Petitions subject to the 20,000 limit
that are not selected in that random selection will be considered with the
other H-1B petitions in the random selection for the 65,000 limit.
The rule further clarifies that USCIS will deny petitions that incorrectly
claim an exemption from any H-1B numerical limits. Those filing fees will not
be returned.
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http://www.nydailynews.com/money/2008/03/24/2008-03-24_rules_tighten_for_work_visas.html
Monday, March 24th 2008, 4:00 AM
Harmel/Getty
H-1B visas let foreigners with valued skills come to the U.S. to work. Last
year, 133,000 applications were submitted.
A warning to employers: If you want special visas for skilled foreign workers
this year, be careful or you're out of the game.
A new U.S. Citizenship and Immigration Services rule dictates that bosses can
submit only one application for each worker in need of a visa known as an H-
1B. Exceed the limit, and your employee is ineligible.
"We want to make sure every company has a fair chance," agency spokesman Shawn
Saucier said.
The application period starts April 1 and runs for five business days for this
year's batch of 65,000 visas -- which will be awarded by an electronic
lottery, because as many as 500,000 applications are expected to pour in.
Visa candidates will be disqualified if employers make multiple applications
for them, and fees of $1,570 to $2,320 per application will not be refunded.
Last year, 500 duplicate applications were submitted by employers trying to
improve their odds of getting the visas, Saucier said.
"Companies have been victimized by these multiple applications," said Deborah
Notkin of Manhattan law firm Barst & Mukamal. "This levels the playing field."
Last year, the 65,000 cap was met on the first day of the application period,
and 133,000 applications were submitted during the process, which was two days
long.
Many of Notkin's clients didn't get the coveted visas.
"I'm still upset," she said.
One consulting firm had two foreign employees working on infrastructure
projects in the city under one-year, post-college visas. They had to leave the
country without finishing their work.
The visas are for skilled jobs -- from lab scientist to fashion model --
though the highest paid supermodels come to the United States on an O visa.
City employers that most need skilled-worker visas include pharmaceutical
companies, reinsurance firms, investment banks, civil engineers, hoteliers and
software consultants, Notkin said.
There is a short cut to getting an H-1B visa -- for workers with master's or
other advanced degrees from U.S. universities. The first 20,000 to apply can
get them without participating in the 65,000-visa lottery.
If their number exceeds 20,000 during the five-day application process, they
will participate in a separate lottery with a 20,000 cap.
While the new measure forbidding multiple visa applications is helpful, it
falls "woefully short" of needed reforms, Notkin argued.
"The root of the problem is the cap is too low," she said.
As recently as 2002, 195,000 skilled-worker visas were issued annually.
Proposed legislation would restore the cap to 195,000. Notkin thinks that's a
good idea.
"As our economy grows, the need for different jobs grows," she said.
lcroghan@nydailynews.com
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http://pubweb.fdbl.com/news1.nsf/9abe5d703b986cff86256e310080943a/cd3604a32e8452d3852574110063972d?OpenDocument
Fragomen, Del Rey, Bernsen & Loewy, LLP
USCIS Will Prohibit Multiple H-1B Filings By One Employer for a Single Foreign
National
03/19/2008
Employers will be broadly prohibited from filing more than one H-1B petition
on behalf of a single foreign worker, under a new U.S. Citizenship and
Immigration Services (USCIS) regulation that will be made public soon.
The new rule will also expand the H-1B cap selection lottery to include
filings received during the first five business days of the filing season
-- i.e., filings received through Monday, April 7, 2008.
Multiple Filings Prohibited
The new regulation will prohibit a single employer from filing more than one
H-1B petition on behalf of an individual foreign worker, even where the
employer has more than one bona fide job opportunity for the worker or where
the foreign worker qualifies under the standard H-1B cap and the 20,000 cap
exemption for holders of U.S. advanced degrees. If the agency detects any such
multiple filings, it will deny or revoke them and will keep the filing fees.
The rule will not prohibit related companies, such as a parent and a
subsidiary, from each filing an H-1B petition on behalf of a single foreign
worker, as long as each company has a distinct bona fide job opportunity for
the foreign national.
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http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9067158&taxonomyId=14
U.S. worried that high H-1B demand may tempt some to 'game' visa lottery
Patrick Thibodeau
March 07, 2008 (Computerworld) The U.S. is concerned that some companies,
desperate to get an H-1B visa, may try to "game" the random visa lottery
selection process to improve their odds. To prevent that sort of interference,
the U.S. Citizenship and Immigration Service is considering regulations that
would penalize any company that attempts to seek an unfair advantage for its
visa petitions in the selection lottery.
The U.S. will begin accepting H-1B visas on April 1 for the next fiscal year,
which begins Oct. 1. Last year, the U.S. received 123,480 visa petitions in
two days, more than double the 65,000 cap. Companies receiving visas were
randomly picked by USCIS via a computerized lottery.
A similar rush for visa petitions is expected this year. Indeed, there are
predictions that last year's record may be broken, reducing the predicted odds
of getting a visa to less than one in three.
The high demand has the USCIS interested in preempting any effort by companies
that may tempted to send in two or more applications for the same person, said
Robert Loughran, an immigration attorney at Tindall & Foster in Austin, Texas.
Loughran also works with the American Immigration Lawyers Association as a
liaison to the USCIS Vermont Service Center in St. Albans, Vermont, where the
H-1B applications are sent for processing. Loughran is expecting some type of
regulation from USCIS before the April 1 filing date.
USCIS spokesman Chris Bentley confirmed this concern. "We are looking at that
issue and we are looking at possible remedies to make sure that no one
manipulates the system, or no one is able to game the system," he said.
Bentley could not discuss what may be in the works.
One possible penalty from the USCIS, Loughran believes, will be the rejection
of all visa petitions from a company if multiple petitions are filed for the
same individual. Companies may also be penalized if they try to get their
applicants a visa under the H-1B cap of 20,000 visas (in addition to the
65,000 previously mentioned) that are set aside for advanced-degree holders.
Demand will be high, said Loughran.
"We've got a year's worth of pent-up demand," said Loughran, he said there are
employers keeping employees offshore because they can't get the visas, as well
as college graduates who may be continuing their education because they
couldn't get a visa.
One person who hopes to do better this year in the visa lottery is Steve
Goodman, the CEO of PacketTrap Networks Inc., a San Francisco-based network
management software firm.
Goodman had three visa applications in last year's lottery and did not get any
of them approved. He intends to send in three applications again.
He added that he has turned to H-1B workers to supplement his work force
because of the difficulty in finding the right skills.
Hiring an H-1B worker isn't cheaper labor, said Goodman. If cost were the sole
consideration, "it's cheaper to outsource it to India." It can cost between
$5,000 and $10,000 to sponsor an H-1B worker, he said.
"Believe me, I would rather offer a job to an American," said Goodman. "But if
that person is not here then I have to go to the H-1B route to get that
software developed."
Goodman said while he uses an India-based outsourcing firm for some ancillary
development work, he wants to keep his core development work in the U.S.,
saying the "quality stateside is higher" because the development process is
better.
The visa issue is politically explosive, in part, because large numbers of
visa applications arriving April 1 will likely be from Indian offshore firms.
U.S. Sen. Chuck Grassley (R-Iowa) has charged that H-1B visas are being used
to displace U.S. workers.
Microsoft Chairman Bill Gates is expected to testify Wednesday before a U.S.
House committee on innovation issues and will likely raise the visa issue. He
has traditionally defended the need for H-1B visas.
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http://www.thehindubusinessline.com/2008/03/21/stories/2008032151580400.htm
Date:21/03/2008 URL:
http://www.thehindubusinessline.com/2008/03/21/stories/2008032151580400.htm
Back US bars multiple H-1B filings for same worker
Nasscom welcomes move; hopes for hike in cap
Our Bureau
New Delhi, March 20 With barely ten days to go for the start of H-1B visa
rush, the US Citizenship and Immigration Services (USCIS) today introduced new
rules prohibiting companies from filing multiple H-1B visa applications for
the same employee. The move is aimed at ensuring a fair and orderly
distribution of H-1B visas (used to fill posts ranging from computer
programmer to architect), for which USCIS is expected to apply a random
selection process to hand out 65,000 new visas under the stipulated cap.
"These changes will ensure that companies filing H-1B petitions subject to
Congressionally mandated numerical limits have an equal chance to employ an H-
1B worker. USCIS will deny or revoke multiple petitions filed by an employer
for the same H-1B worker and will not refund the filing fees submitted with
multiple or duplicative petitions," USCIS has said.
Apex software body Nasscom welcomed the move to streamline the H1B visa
process, saying it would eliminate unnecessary malpractices by fly-by-night
operators that deny opportunity to genuine applicants. "We do hope that over
the years, the overall H1 cap would be increased and the lottery process may
not be required. In the previous years when the cap was 1.95 lakh, the overall
visa utilisation was only 60 per cent," Nasscom said.
Exceptions
However, USCIS rules do not prevent related employers (such as a parent
company and its subsidiary) from filing petitions on behalf of the same
professional for different positions, based on a legitimate business need.
On April 1, 2008, companies would scramble to file petition for H-1B workers
for fiscal year 2009 starting on October 1, 2008. The current cap is set at
65,000, with an additional 20,000 for holders a US Master s degree or higher.
Last year, H-1B visas were snapped up on the first day itself, and USCIS
received more than 123,000 petitions for the 65,000 visas available. The visa
crunch has prompted a pressure from US companies to raise the H-1B visa quota,
with the Microsoft Chairman, Mr Bill Gates recently describing the cap as
"arbitrary and counterproductive".
Bills for higher cap
"The current base cap of 65,000 H-1B visas is "arbitrarily set" and bears no
relation to the US economy s demand for skilled professionals, he told a House
of Representatives Panel on Science and Technology recently adding that US
position as the global innovator was at risk.
Last week, US Republican Mr Lamar Smith introduced a legislation that would
retroactively increase the 2008 visa cap to 1.95 lakh as well as set that
level for the fiscal 2009. Democrat Ms Gabrielle Giffords of Arizona also
introduced legislation the same week to increase the cap to 1.30 lakh a year.
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