Thousands Of H-1B Visas Still Up For Grabs while employers whine

Date: Friday, July 17, 2009 3:15 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 2039 -- 7/17/2009 >>>>>

Two recent articles are interesting.

Informationweek is reporting that the H-1B visa cap still hasn't been reached
for 2010. That hasn't stopped lobbyists from asking for more visas however.

Robert Hoffman, VP of government affairs at Oracle:
"This is what we've been saying all along, the cap should be driven
by demand," he says. "If the economy is strong, demand for skilled
workers grows, and when the economy is tough, demand for H-1B goes
down," he said. Compete America members such as Oracle (NSDQ: ORCL)
are in favor of a "market-based cap" that allows the U.S. to
increase the number of H-1B issued annually if the cap is reached
before the fiscal year begins, or early in the fiscal year.

Roughly translated, Hoffman is using free market flim-flam to make his point
that companies should be able to hire as many H-1Bs as they want and the
government's role is to rubber stamp everything. Hoffman's call for more visas
is unlikely to convince anyone -- especially considering the increasing anger
over unemployment rates and the fact that companies aren't hiring enough H-1Bs
to trigger the existing cap. His lack of logic won't deter him from his
crusade for cheap labor -- it just means that Hoffman and his cohorts will
shift their emphasis from standalone H-1B bills to making sure that the next
amnesty bill contains a substantial H-1B and green card visa increase.

In the meantime, Hoffman said comprehensive immigration reform
legislation -- including proposals related to H-1B visas --
will likely soon resurface for debate in Congress, probably
first in the Senate before the fall.

The second article from Computerworld contains some wonderful news but it
sounds too good to be true. In it, several employers whine that it's getting
tougher to sponsor H-1B visas because the government is becoming too vigilant.

Sam Shihab, an immigration attorney based in Washington complains
that H-1B employers are now "guilty until proven innocent."

Let's hope Shihab is right, because if the USCIS assumes that 100% of the
companies who hire H-1Bs are guilty then they will be right at least 99% of
the time!

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.informationweek.com/news/government/federal/showArticle.jhtml?articleID=218500442

Thousands Of H-1B Visas Still Up For Grabs

The demand for highly educated H-1B visa workers, however, is strong. The cap
for foreign workers with advanced degrees was reached in April.

By Marianne Kolbasuk McGee, InformationWeek July 14, 2009

Want an H-1B visa to work temporarily in the U.S. starting this fall? You
still have a pretty good shot if an employer is willing to file a petition for
you. The U.S. still has about 20,000 visas available for fiscal 2010.

It's been nearly four months since the U.S. began accepting from employers H-
1B visa petitions for IT and other professionals for temporary jobs starting
in fiscal 2010, which begins Oct. 1. The weak economy continues to dampen
demand of the visa most popular among employers seeking IT workers.

Since the U.S. began accepting fiscal 2010 visa petitions on April 1, the U.S.
has hit about two-thirds of the annual cap on general H-1B visas. At last
count, as of July 10, U.S. Citizenship and Immigration Services had received
44,900 H-1B visa petitions toward the congressionally mandated annual cap of
65,000.

However, the demand by employers for more highly educated H-1B visa workers is
apparently stronger. By the end of April, the U.S. had reached the cap of
20,000 H-1B visa exemptions for foreign workers with advanced degrees --
including masters and PhDs -- from U.S. schools.

But because the general category H-1B visa cap of 65,000 hasn't been hit yet,
USCIS will continue to accept advanced degree as well as general H-1B
petitions until the agency reaches the statutory limit on all H-1Bs.

The fact that it is mid-summer and the H-1B visa cap hasn't been reach yet is
startling when contrasting this year's demand to the last couple of years,
when USCIS received enough petitions to hit the combined 85,000 limit within
days of accepting the applications in April.

But with the economy still sputtering, few expected demand for H-1B visas to
be as robust this year as in the past. "This isn't a surprise," said Robert
Hoffman, VP of government affairs at Oracle and co-chair of Compete America, a
coalition of technology companies and other employers that had been for years
lobbying Congress to raise the H-1B visa cap.

"This is what we've been saying all along, the cap should be driven by
demand," he says. "If the economy is strong, demand for skilled workers grows,
and when the economy is tough, demand for H-1B goes down," he said.

Compete America members such as Oracle are in favor of a "market-based cap"
that allows the U.S. to increase the number of H-1B issued annually if the cap
is reached before the fiscal year begins, or early in the fiscal year.

"Even with 20,000 visas still available, no one has been hired yet,"
Hoffman says, pointing out that the visas don't become effective till Oct.
1. "If the economy picks up, can those 20,000 visas last 'til the next 14
months?" during which time employers could have stronger demand for highly
skilled workers, he asked.

If the cap for fiscal 2010 gets reached, the U.S. won't accept any additional
petitions for H-1B visas until April 1, 2010 for fiscal 2011 starting Oct. 1,
2010.

In the meantime, Hoffman said comprehensive immigration reform legislation
-- including proposals related to H-1B visas -- will likely soon resurface for
debate in Congress, probably first in the Senate before the fall. Sen.
Charles Schumer (D-NY), a member of the Senate subcommittee on immigration,
said recently he expects to have a draft bill for comprehensive immigration
reform ready by Labor Day.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/s/article/9135552/U.S._steps_up_H_1B_green_card_assault_with_paper_chase?source=rss_news

U.S. steps up H-1B, green card assault with paper chase Immigration attorneys
say regulators are moving aggressively to request documents Patrick Thibodeau

July 15, 2009 (Computerworld) The H-1B visa and Permanent Residency Card, or
green card, programs are under a new assault, and not from its usual opponents
in Congress and elsewhere, according to immigration attorneys.
The program now appears to be under attack from worker bees in the United
States Citizenship and Immigration Services bureau and other regulatory
agencies who have dramatically increased the amount of paperwork required from
employers looking to hire workers with green cards or H-1B visas.

Immigration attorneys say the primary tool used by the regulators is what's
called a "request for evidence" that the USCIS and other agencies can make to
those who apply for an H-1B visa or permanent residency application and
renewal. In recent months, use of the tool is becoming more far-reaching and
includes requests for such things as corporate payroll records, zoning maps
and even building fire safety plans, they added.

The document requests by the U.S. Citizenship and Immigration Services in
particular, are "on the border of harassment," said Crystal Williams, co-
director of the American Immigration Lawyers Association. The agency is
"attempting to build a barrier, to make it as difficult as it possibly can be
to get a visa." The group is now gathering evidence to make a case that the
government is overstepping its authority. The request for additional documents
has "gone out of control," said Sam Shihab, an immigration attorney based in
Washington. H-1B employers are now "guilty until proven innocent," he added.

He noted that he took a photograph of one stack of supporting documents that
stood four inches high and sent it to a client. He provided details of some of
the documents sought by the government in his visa law blog.

Shihab claims the government is particularly profiling IT firms that hire
mostly Indian nationals.

Suhi Koizumi, a special counsel at Buchalter Nemer LLP in San Francisco, said
that she has seen many government demands for irrelevant and burdensome
documents from companies looking to hire workers who carry Green Cards. By
law, employers seeking workers with green cards must certify that there is no
qualified U.S. worker is available for the jobs.

U.S. officials "are going to request resumes that the companies have received
to make sure that they have considered all minimally qualified workers," said
Koizumi. "Jobs are hard to find and the government wants to encourage
companies to hire U.S. workers."

The USCIS says that some of the increased scrutiny is required as part of the
Troubled Asset Relief Program (TARP), which set new H-1B restrictions on firms
that received bailout funds. The agency noted that in March, it cut back on
the number of documents sought from companies.

In an e-mail to Computerworld, a USCIS spokesman noted that the agency is
"requesting end-user documentation in those situations where the beneficiary
is not working on-site for the petitioner. This will help us ensure that a job
offer does indeed exist, and that the worksite is covered by the 'labor
condition application' in the file and that a position is a specialty
occupation." In a Labor Condition Application, an employer must attest to
paying the prevailing wage.

It's hard to tell whether the increased paperwork is discouraging foreign
workers from applying for H-1B applications, though the pace of new applicants
has fallen as U.S. unemployment numbers grow. Approximately 65,000 H-1B visa
applications have been received so far for the 2010 fiscal year that begins
Oct. 1. A total of 85,000 H-1B visas are available for the fiscal year,
including 20,000 designated for holders of master degrees.

There are a number of reasons why the U.S. would step up enforcement of the H-
1B and green card programs, especially for workers not housed at a customer
site. A study by the USCIS released last fall found various problems,
including fraud, in nearly one-in-five H-1B applications. And in February, the
U.S. arrested 11 people in six states on H-1B fraud charges that alleged
companies were displacing qualified American workers.

A video of a 2007 seminar sponsored by Pittsburgh law firm Cohen & Grigsby,
which was posted on YouTube at the time, was described as an invitation to
increased enforcement in a separate video put together by the Programmers
Guild. The law firm's videos were recorded during a May 15, 2007 seminar that
was apparently were intended to provide free legal tips to hiring managers and
other viewers. In the video, an attorney speaking at the seminar is seen
saying that "Our goal is clearly not to find a qualified and interested U.S.
works. That in a sense sounds funny, but it is what we are trying to do here."

The U.S. is also well armed to enforce visa rules through a $500 anti-fraud
fee attached to as part of each H-1B applications.

The Obama administration hasn't yet spelled out its direction for H-1B visas
and employment based Green Cards, but it is expected to support an expansion
in their use. There's a belief among immigration attorneys that the
enforcement actions are being directed by staff since the next director of the
USCIS, Alejandro Mayorkas, is awaiting confirmation. And while document
request have picked up this year they were also gaining steam before President
George W. Bush left office.

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