Vise on Worker Visas Squeezes Tighter

A change in the application process means that starting April 1, more companies will be chasing the same finite number of available visas.

American companies looking to hire nonimmigrant workers from overseas to work in specialty fields, including accounting, will have a slimmer chance of obtaining visas because of a change in the H-1B application process that takes effect April 1.

Under the policy change, visas will be granted to a randomly selected 65,000 applicants from a pool of applications consisting of those submitted within five business days after April 1. Before now, there was a set limit of 120,000 applications for the pool; last year the quota was filled in a single day, leaving companies that submitted applications on April 2 to wait to try again this year.

The number of applications to be granted remains the same, but with five business days in which they can be accepted, the size of the applicant pool is expected to be much greater, decreasing the odds that any single application will be selected. (An additional 20,000 visas are reserved for foreign nationals who have a master’s or doctorate from an American institution; applications for those continue until the cap is reached.) Also under the new rules, a company that files a duplicate application for a single employee will be disqualified from the process and lose its application fee.

“They’re basically reducing the madness of the first few days so people are not clogging the system,” Elena Park, head of the immigration practice at Philadelphia-based law firm Cozen O’Connor, tells CFO.com. “There’s no doubt there will be even more petitions this year. If last year there was a 50-50 chance to get a visa, now it’s going to be a 10 percent chance.”

The change, according to the U.S. Citizenship and Immigration Services (USCIS), is an attempt to “promote a fair and systematic process for H-1B petitioners” and combat problems companies have faced with courier delays. The USCIS reminds applicants that the only accepted methods of delivery are the U.S. Postal Service and private couriers such as FedEx, DHL, and UPS. Packages that are hand delivered, or sent via taxi or a private courier that isn’t bonded, won’t be accepted.

Lynda Zengerle, a partner and head of immigration practices at law firm Steptoe & Johnson, tells CFO.com: “In the past, if a FedEx package got delayed, there was no way out of that situation. This allows delays of any kind, so if the courier drops the ball, you’re not out of luck.”

The issue of H-1B visas has been a hot topic in the business community as companies struggle with restrictions on hiring top talent. In early March, Microsoft’s Bill Gates pleaded with the House Committee on Science and Technology to push Congress to extend the cap on the number of visas to meet the demand of American companies that require such labor to be competitive.

The week after his testimony, two bills were introduced in Congress that would do just that. One, drafted by Rep. Lamar Smith (R-Tex.), would retroactively increase the 2008 visa cap to 195,000, as well as set that level for the 2009 fiscal year that begins on October 1. Another bill, drafted by Rep. Gabrielle Giffords (D-Ariz.), would increase the cap to 130,000 this year and according to demand in future years. While the bills likely won’t move forward before the application process starts, if one does pass, the USCIS could adjust the cap, as it processes the visas through October 1, the date when recipients are able to begin working.

In past years, attempts to legislate adjustments to the congressionally mandated H-1B visa cap have been lumped with comprehensive immigration-reform legislation, which has failed to move through Congress. However, taking the issue away from immigration reform as whole doesn’t equate to a guarantee of success. The biggest concern from members of Congress and the public, says Zengerle, is that increasing the number of H-1B visas to foreigners takes jobs away from Americans, even though employers are required to meet labor conditions set by the Department of Labor and the Department of Homeland Security to ensure that American workers aren’t adversely affected by hiring foreigners.

“There are a large number of representatives who would not favor the bill because they think it takes away from American jobs,” says Zengerle. “And given the fact that we’re coming up to an election, I don’t think any immigration bill would be passed that would give away anything.”

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