No new H-1B visa petitions accepted in 2004

U.S. Citizenship and Immigration Services (USCIS) will not accept any new petitions this fiscal year for H-1B visas, which allow highly skilled foreign workers to work in the United States, the bureau announced Feb. 17.

USCIS, a bureau of the Department of Homeland Security, said it had received enough H-1B petitions to meet this year's congressionally mandated cap of 65,000 new visas.

Petitions involving current H-1B workers do not count against the cap. USCIS said it will continue to process petitions for current H-1B workers to:

* Extend the length of their stay.

* Change the terms of their employment.

* Change employers.

* Work concurrently in a second H-1B position.

In addition, new petitions for workers at institutions of higher learning or related nonprofit entities, or at nonprofit or governmental research organizations, are outside the cap.

USCIS said in a statement that it will return new petitions submitted after the close of business Feb. 17. Beginning April 1, petitioners may file petitions for FY 2005 H-1B employment for jobs with a start date of Oct. 1, 2004, or thereafter.

In a statistical table, the agency reported that it had approved 105,314 petitions for new employment in FY 2003. Of those, 78,000 counted against the 195,000 cap then in force. During FY 2003, the bureau approved 112,026 petitions for continuing H-1B employment.

Congress raised the annual cap on H-1B visas to 195,000 for fiscal years 2001 through 2003.

An H-1B visa allows a nonimmigrant alien to work temporarily in the United States in a "specialty occupation" that requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include architecture, engineering, medicine and health, law, and the arts. A sponsoring employer is required to petition for the visa.

Hue and Cry

Hitting the cap less than five months into the fiscal year drew this response from American Business for Legal Immigration: "Our goal is to keep the U.S. economy growing and keep U.S. jobs in America. Sometimes this requires hiring a limited number of highly educated foreign professionals to fill technical or specialized positions," said Sandy Boyd, who chairs the coalition of 200 corporations, universities and trade associations.

"Reaching the 2004 visa limit less than halfway through the fiscal year is clear evidence that the system needs to be fixed," Boyd said. She is vice president for human resources policy for the National Association of Manufacturers.

The American Immigration Lawyers Association (AILA), which historically has opposed any cap, greeted the news by calling on Congress "to fix this untenable situation by supporting an H-1B program that reflects our nation's need for these professionals and allows U.S. employers access now and in the future to the talents of these highly educated foreign professionals."

In a Feb. 18 statement, AILA characterized the H-1B program as "a tool to keep the U.S. economy vibrant and jobs in America." If the H-1B program cannot give U.S. employers access to the highly skilled workers it covers, "the result will be American jobs lost and American projects losing out to foreign competition," the statement said.

Critics say that, along with the L-1 visa program, the H-1B program contributes to unemployment among highly qualified U.S. professionals and fuels the controversial trend toward "offshoring."

In testimony prepared for a Feb. 4 hearing on the L-1 visa program before the House International Relations Committee, Michael W. Gildea, who heads the AFL-CIO's department of professional employees, described Indian-owned outsourcing companies that contract with U.S. firms to provide techrelated services using H-1B and L-1 visa holders. (The L-1 visa program applies to intracompany transferees in global operations that have U.S. facilities. L-1 visas are uncapped and, unlike H-1B visas, there is no requirement that the employer pay the prevailing wage for that occupation in the geographic area where the worker will be employed.)

"Once the team of temporary workers has the knowledge and technical skills--sometimes after being trained by U.S. workers--as much of the work that is technically feasible to offshore is then carted back to India," Gildea testified.

Almost one-third of H-1B beneficiaries approved during FY 2002 were born in India, according to USCIS statistics.

--MARGARET M. CLARK, SPHR

COPYRIGHT 2004 Society for Human Resource Management
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