New H-1B visas rule bars multiple requests for same worker

March 20th, 2008 - 10:03 am ICT by admin  

By Arun Kumar
Washington, March 20 (IANS) Amidst demands for raising the cap on H-1B visas for skilled professional, authorities have issued a new rule prohibiting employers from filing more than one petition for a single employee in a fiscal year. The change is intended to promote a fair and systematic process for H-1B petitioners, the US Citizenship and Immigration Services (USCIS) said Wednesday announcing the new rile.

This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker. The current cap on new H-1B visas is 65,000 per fiscal year with a few exceptions.

US businesses utilise the H-1B programme to employ foreign workers in fields that require theoretical and practical expertise in specialised occupations requiring a bachelor’s degree or higher (or its equivalent), such as scientists, engineers, or computer programmers.

The first 20,000 H-1B petitions filed on behalf of foreigners with US-earned masters’ or higher degrees are exempt from the H-1B cap of 65,000. USCIS administers a separate “20,000 cap” for such exempt petitions.

USCIS said it will use a random selection process for all the master’s degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary.

If the US master’s exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap.

Petitions eligible for the US master’s degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days, the announcement said.

USCIS said petitions for new H-1B employment are exempt from the cap if the foreigners will work at the defined institutions of higher education or a related or affiliated non-profit entities, or at non-profit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.

USCIS said it will start receiving H-1B petitions April 1 for FY 2009 beginning Oct 1. When it is determined that the caps have been reached, USCIS will employ a random selection process to choose among the petitions received on the “final receipt date.”

Microsoft Chairman Bill Gates among other has repeatedly urged the US Congress to let more foreign engineers including Indians to work in the US as immigration restrictions were forcing US high-tech firms to outsource jobs overseas.

The current cap of 65,000 H-1B visas aimed at highly skilled professionals “is arbitrarily set and bears no relation to the US economy’s demand for skilled professionals,” he told a Congressional panel recently.

“If we increase the number of H-1B visas that are available to US companies, employment of US nationals would likely grow as well,” he said.

A recent study by the National Foundation for American Policy (NFAP) in fact shows American businesses are finding it hard to fill skilled positions even as H-1B visas that bring foreign professionals, including a large number from India, are creating jobs in the US.

Confirming Gates’ contention that an arbitrary cap on H-1B visas is forcing high tech firms to outsource jobs, the study found major US technology companies today average more than 470 job openings for skilled positions in the US while defence companies have more than 1,265 each.

A second complementary study by NFAP found after examining H-1B filings and year-by-year job totals for the technology companies in the Standard & Poor (S&P) 500 that hiring skilled foreign nationals on H-1B visas is associated with increases in employment at US technology companies.

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