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H1-B
visa: Complexities and restrictions
Highlighting
on the restrictive nature of H1-B visa, Mohan Babu
says that the slowdown has resulted in lesser reliance on
this “gateway” to the US
Over
the weekend, I was chatting with my brother, who is based
in Bangalore; after a few pleasantries, the topic veered towards
life and a career here in the US. Manoj started telling me
about the impact of layoffs on Bangalore’s job market how
a number of people who were laid off in the US were now looking
for jobs in India. He added, “If you are thinking of packing
your bags and coming home, don’t. Now is not the time, since
you will only be adding to the statistics of the burgeoning
US returned guys out here.” He also added that most of the
guys who came back from the US didn’t realise that they would
have to leave the US before the expiry of their visa. This
set me thinking about the H1-B visa.
Most
Indians I speak with are either bedazzled by, or are totally
ignorant of the intricacies involved in the H1-B process.
In this article, I will try to shed some light on the process.
Each
nation in the world has highly protective laws in place to
safeguard the livelihood and to secure work for their citizens.
Incidentally, even India is highly protective of its workforce
and it is extremely difficult for a foreigner to legally come
and work anywhere in India. Needless to say, Western nations
have been highly protective of their workers and do not want
a mass of foreigners taking away their jobs.
The
exception to this rule has been with respect to computer professionals.
In the late eighties and early nineties, Western countries
started reaping the benefits of large-scale computerisation
and automation. This in turn increased their productivity
and bolstered their economy. However, they were not prepared
for the sudden increase in demand for programmers, analysts
and software professionals to build, maintain and manage their
systems.
A
number of countries including the US, UK and Canada realised
the need for software professionals and as a ‘stop gap’ measure
relaxed their labour laws in order to allow the entry of foreigners
with these specialised skills. In the US, companies were allowed
to bring temporary workers on a visa known as the ‘H1-B’.
In other countries, it is known differently; for instance,
in the UK and Singapore, it is called the ‘work permit’. By
whatever name it is called, one thing is certain, it is a
“temporary” visa that allows a foreigner to live and work
in the country for a specified period of time, after which
they are expected to return to their native lands.
During
the surge in the economy that we experienced in the nineties,
H1-B helped employers get access to a big pool of worldwide
workforce, talented in computer systems design, analysis and
testing. Of course, many companies needed additional people
to manage their Y2K projects. India, incidentally managed
to bag over 50 per cent of H1-B visas’ during 1998 to 2000.
Of course, when the economy started souring, many people lost
their jobs. H1 holders were mortified to find out that they
would have to pack up and leave the US if their employment
was terminated and they were “out of status”. In a slowing
economy, many employers are unwilling to sponsor new visas
and hence many people are finding it hard to switch jobs after
being laid off.
The
H1-B documentation process begins when an employer petitions
the US government, requesting permission to allow a prospective
employee to come, live, and work in the US. This application
process is archaic and complex and is generally done by specialised
attorneys hired by the company. People ask me how long the
visa approval takes, and if it is possible to verify the status
of the process after an application has been filed. The processing
times are extremely volatile. Although most immigration attorneys
have a ballpark estimate of the current processing time, it
is extremely difficult to predict how long a particular case
is going to take.
One
of the most important things about the H1-B visa is that it
is extremely restrictive in nature. Once a person comes to
the US on a H1-B, he/she is expected to work for that employer
who had sponsored the paperwork. Switching jobs would mean
going through the same process with the new employer. After
the expiry of the visa or on termination of employment, the
person is expected to leave the country, unless they can find
another employer willing to sponsor a H1-B.
Most
employers in the US are either unaware of or unwilling to
jump the legal hoops to get an employee sponsored on H1-B.
Of course, there are a number of large employers and software
houses who are adept at this process. An interesting list
of top sponsors in the US can be found at http://www.GaramChai.com/TopH1b.htm.
Because of the complex maze one must go through, a number
of body shoppers have a field day sponsoring H1-B visas’ placing
the employees at client sites and skimming off profits. Some
have even gone as far as to compare it with indentured labour;
this is partly the fault of gullible youngsters in India and
elsewhere who succumb to the ‘Get to US quick’ schemes promoted
by unscrupulous middlemen. Of course, as the recent Joshi
case in California has shown, even the so-called bonds or
agreements that the body-shoppers try to enforce hold little
water.
If
there is any good coming out of the US slowdown, it is the
fact that the tribe of body-shoppers is slowly vanishing.
This is not to say that jobs for H1-B visa holders will vanish,
but that employers will become more selective of the people
they employ and they will increasingly bypass smaller middlemen.
Large Indian software houses like Infosys, TCS, Wipro, HCL,
CBSI etc will continue to bag large projects in the US and
will send a number of employees on H1-B. Some industry pundits
are also predicting that outsourcing (of large projects) to
India will continue to grow, leading to lesser reliance on
H1-B.
One
thing is for sure, although H1-B visa is not going away anytime
soon, but the means of “get to the US quick” is definitely
undergoing a change.
points
to remember
- The
application for H-1B visa involves a very complex process,
generally done by the employer’s lawyers.
- The
employer is legally required to pay for the cost of sponsoring
the visa.
- It
can be sponsored for a maximum period of six years after
which the employee must leave the country.
- If
employment is terminated during any time, the employer must
give the employee an air ticket with all the wages/salary
due.
- H1-B
employees cannot be kept on “Bench without pay”. They must
be paid during the bench period.
(The
information contained in this article is not legal advice
and should not be substituted for legal advice.)
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