A Roundup of H-1B News

The H-1B program has been creating news recently, and here's a summary of some items of interest:

From USCIS: The 18-month long H-1B hiring season was opened again on April 1 by USCIS, and there were some takers – but not many. This lack of interest was probably due to economic factors, not the opposition to the program from many of us, and not much because some of the fees had been raised last year by congressional action.

In some recent years, the entire 65,000 principal quota for new H-1B visas was gobbled up by employers on the first day or two. By the end of April 2009 there were 45,000 applications filed, by the same time in 2010 there were 16,500 of them, and by April 29, 2011, according to a USCIS announcement, there were only 9,200 new filings. There was, proportionately, a little more interest in the filings for the 20,000 ceiling for H-1Bs with advanced U.S. degrees, 6,800 in this category.

Every year on April 1 USCIS starts accepting new visa applications for work starting the following October 1, and it continues to accept them to the following September 30, or until the ceilings are reached, whichever comes sooner. Only new visas are covered by the ceilings, extensions of, and transfers of, old visas are issued without numerical limits.

From the Diplomats (via WikiLeaks): Other news about the program, again from official sources, was more intriguing and more damning, if less orchestrated by the government.

Some of the huge number of diplomatic cables exposed by WikiLeaks put the H-1B program into a different focus, and, to my surprise, a partially Mexican one. (The H-1B program is primarily used by people from China and India.)

According to a news article in Computer World: "Recently released WikiLeaks [diplomatic] cables are shedding some light on attempts to fraudulently obtain H-1B visas in places that don't get much attention for it – Mexico, Libya and Iceland."

In Mexico, a diplomat reported in a two-year-old cable that there were "persistent fraud problems with H-1B visas as . . . applicants overstate experience, education or future job responsibilities", often presenting false pay receipts.

In Libya, again two years earlier, an H-1B applicant submitted clearly fake documents saying "that he paid a large sum for them on-line."

In Iceland, according to the article, "immigration attorneys were attempting to fly in H-1B and L-1 applicants 'from other parts of the world for the sole purpose of having them apply for visas in Iceland in the expectation of fast and easy issuance'."

From Regulators: That there is some regulation of the program, and that it typically moves very slowly, was reflected in an article in the April 11 issue of Interpreter Releases, the immigration bar's trade paper (that item is not online.) The physician running Lung Associates in Florida (Moonasar Rampertaap) was found to have underpaid and otherwise mistreated three other physicians working for him as H-1Bs, starting in 2006; the Wage-Hour Division of the Department of Labor ruled that he must pay the physicians a little over $50,000 and pay DoL $11,850 in civil penalties. In March a DoL review panel agreed with the Wage-Hour decision, but close to five years had passed by that time.

Lung Associates was also debarred from the program for two years, but the timing was such that the firm was not among the relatively small number of debarred employers listed in the recent CIS Memorandum "Taking Names: List of Firms Barred from Foreign-Worker Programs Likely Just Scratches the Surface".

From Would-be Participants: As noted in an earlier blog, I think the program should be substantially reduced and reformed; and I also think that it is at least mildly useful to see what is happening in the program from the eyes of those in it, or wanting to join it. Further, I have access to such persons because, as I have mentioned before, as a volunteer, I manage a program that provides income tax assistance to graduate students at a major D.C.-area university.

In the course of conversations with current and potential H-1B people, I recently encountered a nuance that was new to me. I was talking to a graduate student married to an H-1B worker and I asked her whether her husband had been promised a green card by his employer.

Well, yes, she said, but he is now in his first (three-year) term as an H-1B, and they will not file for his green card until he signs up again for a second three-year term with them. She was uneasy about that and did not seem to know that an H-1B worker could switch to another H-1B employer, should the second employer be interested in hiring him.

That second employer might be interested in the person in question because they could hire him outside the ceilings set for employers hiring new H-1Bs, a further nuance that I did not think to tell her about. The husband, of course, may have that information.

A second observation, and not a surprising one, was that a student's financial relationship with the university can be a predictor of the student's H-1B prospects.

Although this is totally anecdotal, I kept running into master's degree candidates (in electrical engineering or information science) who had H-1B jobs lined up, or at least OPT jobs leading to H-1B positions. (OPT – "optional practical training" – is an extension of F-1 status that allows certain foreign student up to 29 months of legal employment prior to either becoming an H-1B worker, or leaving the country, as discussed in another earlier blog.)

The students with these encouraging prospects generally had favorable financial relationships with the university. They had tuition remission and half-time jobs with their department earning wages of $20 an hour or more.

The students, in the same disciplines, who were still looking for H-1B work often had to pay their own tuition, and got jobs in the library at $7.50 or $8.50 an hour; indications that the university was not that impressed with their talents.

I wondered, do their potential employers know what I know about these people? Do employers ask about these student-university financial arrangements as they consider the students as potential employers? It would make sense if they did.

As I carefully do not keep records of the names of the people we help, I have no direct way of answering those questions.

All of these stories – all anecdotes, of course --suggests to me that during this season, at least, H-1B employers are being choosy about whom they hire under this program; just because you are foreign-born and have studied IT at a U.S. graduate school does not guarantee you an H-1B job.

Other Recent References: CIS recently published John Miano's blog "Where are the H-1B Geniuses?" and my web-only Memorandum "H-1B + K-12 = ?: A First Look at the Implications of Foreign Teacher Recruitment." One of the implications, of course, is that schools are ignoring legions of laid-off, experienced U.S. teachers to bring in people from overseas.

In the Memorandum I also list the largest K-12 users of this program in FY 2010, and point out the peculiar and extensive use of the program to recruit secondary school teachers of Turkish in a set of tax-supported charter schools.