The H1b crisis occurred most recently in 2007 when the US FY 2008 H-1B visa quota did not last through the first day of the year. On April 3, 2007, United States Citizenship and Immigration Services announced that it received more applications on April 2 than the 65,000 cap.April 2 was the first day on which an employer could request a first-time visa for an H-1B worker for the period that becomes effective on October 1, 2007. An H1b crisis has occurred in a number of other recent years. Agency rules state that if the limit is reached on the first day of filing, all applications received on the first two days are put into a lottery to determine who gets the relatively few visas that are available.

The American Immigration Lawyers Association (AILA) first reported this crisis. It was then confirmed by USCIS. The Wall Street Journal, BusinessWeek and Washington Post also reported this situation. CNN reported that the congress will hold a special session addressing the H1B crisis.

Parties in interest

The most immediate parties in interest are tens of thousands of skilled workers from countries around the world, who cannot accurately forecast their place of work or residence due to the mismatch in the current visa cap versus visa applications. If the elite crowd isn’t possible to predict their own future, where is the question of them working hard on determining societies future. United States employers are also a chief party in interest, evincing their concerns by applying pressures to the U.S. congress according to the Wall Street Journal.^[2] Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill, “warning of dangers to the [U. S. economy] if employers can’t import skilled workers to fill job gaps”.^[2]

History of the crisis

The Asian Journal, an independent source, noted that the H1b crisis has actually occurred in five of the last eight years.

International note has been taken specifically using the term “H1b crisis”; furthermore, examples of law firm newsletters have appeared which are devoted to reporting on the H1b Crisis.

Congressional response to the H1b crisis

While legislators in the House and Senate have differing ideas on approaches, the topic of changes is H-1b administration is being discussed and analyzed with a resultant bill initiating in the Senate during the 110th Congress of the USA.^[5] The short form of the Senate bill title is the “Hi-Tech Worker Relief Act of 2007″. This title itself has generated controversy in the United States from the medical community and other sectors who claim that the U.S. technology industry is receiving special protection not afforded other economy sectors.

In 2006, These firms collectively were issued 19,512 of the 65,000 H-1B visas granted, with 5 outsourcing firms among the top 5 receivers of H-1B visas. Among the top of the list were some of the most well known outsourcing firms: Infosys, Satyam Computer Services, Tata Consultancy Services, and Wipro Technologies. Critics have argued that granting H-1B visas to these outsourcing firms is not the real intent of the H-1B Visa program though the reasons are vague.^[30]

In 2006, Wipro applied for 20,000 H-1B visas and 160 Green Cards; and Infosys applied for 20,000 H-1B visas and only 50 Green Cards. Of the Applied H-1B visas, Wipro and Infosys were granted, 4,002 and 4,908 visas respectively, an acceptance rate of 20% and 24%. ^[31] Given that both companies have a work force of approximately 70,000 employees, and a U.S. employment base of roughly 20,000 H-1B holders, this indicates that roughly 1/3 of the Indian workforce of Infosys & Wipro applied for a visa in 2006.

Critics have argued that usage of H-1B’s by Indian outsourcing firms is being misused by Indian companies as a conduit to move jobs and technology from the United States offshore to their homeland.

Of all Computer Systems Analysts and programmers on H-1B visas in the USA, 74 percent were from Asia. This large scale migration of Asian IT professionals to the United States has been cited as a central cause of the quick emergence of the offshore outsourcing industry.^[29]

H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN). An H4 Visa holder may attend school, obtain a driver’s license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver’s license in cases where driver’s licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required.

In addition to H-1B visas, there are a variety of other visa categories which allow foreign workers to come into the U.S. to work for some period of time.

L-1 visas are issued to foreign employees of a corporation. Under recent rules, the foreign worker must have worked for the corporation for at least one year in the preceding three years prior to getting the visa. An L-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company’s techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders. For Canadian residents, a special L visa category is available.

TN-1 visas are part of the NAFTA treaty, and are issued to Canadian and Mexican citizens.^[28] Formerly, they were also issued to third country citizens who had obtained permanent residency in Canada.^{[citation needed]} This procedure is called “touching base”.^{[citation needed]} TN visas are only available to workers who fall into one of a pre-set list of occupations determined by the NAFTA treaty. There are specific eligibility requirements for the TN Visa.

E-3 visas are issued to citizens of Australia under the Australia free-trade treaty.

H-1B1 visas are issued to residents of Chile and Singapore under the amended NAFTA treaty.

One recent trend in work visas is that various countries attempt to get special preference for their nationals as part of treaty negotiations. Another trend is for changes in immigration law to be embedded in large Authorization or Omnibus bills to avoid the controversy that might accompany a separate vote.

H-2B: The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status

Alternatives to H-1B Visa:

• Green Card for medical doctors and physicians.
  • Pre-requisite: National Interest Waiver.
  • Alternatively, a Medical Doctor or Physican may enter the U.S. for a temporary period through a temporary visa.
• Green Cards for Nurses and Physical Therapists
• Employment Visa for Professors and Researchers.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor’s PERM system for labor certification erased most of the earlier claimed arguments for H-1B’s as indentured servants during the green card process. With PERM, labor certification processing times have been reduced to less than 90 days.

Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, if the position to which they are moving is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times will improve, but the person will also lose their favorable priority date. In those cases, employers’ incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.

However, many people are ineligible to file I-485 at the current time due to the wide-spread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.

On May 25, 2006 the U.S. Senate passed immigration bill 2611 which contained several increases in the number of H-1B visas, including: 1) raising the base quota from 65,000 to 115,000, 2) Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it, 3) Adding 6,800 visas for trade agreements separate from the base quota, 4) Adding 20,000 visas for those with foreign graduate degrees, 5) Raising from 20,000 to unlimited the number of visas for those with U.S. graduate degrees, and 6) Making visas to non-profit organizations exempt from the quota.^[21][22][23] However, as the House refused to consider the measure, it died in conference and no H-1B increase was approved in time for the elections.

The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B quota limits, individuals who spent one year outside of U.S. and did not exhaust their entire six year term can choose to be re-admitted for “remainder” of initial six-year period without being subject to the H-1B cap.^[24]

The USCIS has also announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens.^[25]

On May 24, 2007, the Senate considered amendments to the Comprehensive Immigration Reform bill (S. 1348) ^[26] including the Sanders Amendment to increase the H-1B Scholarship & Training Fee from $1500 to $8500 (for H-1B employers with more than 25 full time employees). The additional fee was to be used for training and scholarship programs and in addition to other existing fees. Senator Sanders listed the Teamsters Union and the AFL-CIO among supporters of his amendment. Without this amendment, Senator Sanders (I-VT) said, “skilled middle class and upper middle class Americans” would be hurt, and their wages would continue to be suppressed. Just prior to the vote, Senator Sanders announced that he had made changes to his amendment, dropping the fee for H-1B visas from the $8500 he proposed earlier, down to $5000. Following Senator Sanders’ announcement, Senators Kennedy and Specter expressed their support for the bill and the amendment passed by a vote of 59-35^[27]. Compete America, a coalition of U.S. tech companies, reported the passage of the Sanders amendment will “accelerate outsourcing and undermine U.S. economic growth.”

For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker must meet or exceed the “prevailing wage” in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing U.S. citizen workers. Under the regulations, LCAs are a matter of public record. Corporations hiring H-1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.

Theoretically, the LCA process appears to offer protection to both U.S. and H-1B workers. However, according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective.^[19] Ultimately, the employer, not the Department of Labor, determines what source it will use to determine the prevailing wage for an offered position, and it may choose among a variety of competing surveys, including its own wage surveys, provided that such surveys follow certain defined rules and regulations.

The law specifically restricts the Department of Labor’s approval process of LCAs to checking for “completeness and obvious inaccuracies”.^[20]. In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted.