Until a few years ago, April 1 had only one significance - it was April Fools Day, a day of playing pranks and jokes on every one. The most amazing prank of all time is when MIT students got a Police Cruiser Car with flashing lights on top of their University's Big Dome, and no one could figure out how they did it. I guess that is why MIT is so full of brilliant minds.
Anyway, for those of us with less brilliant minds, April 1 has always just been a fun day when we pull little pranks on our family and friends.
Until a few years ago, when April 1 became the official first day for accepting applications for the highly coveted H1B Visa Petitions by the USCIS. The petitions are reviewed and the approved ones may start working in the United States from October 1, for a maximum period of three years. There are a limited number of petitions that may be approved each year, presently the"quota limit" is about 85,000 of which 20,000 is reserved for candidates with advanced (beyond Bachelors) degrees issued by an American University.
A related topic is Offshore working, frequently confused with outsourcing. All offshore work is not outsourced, and all outsourced work is not off-shored. More about this in the Diary.
Your attention is drawn to my comment on September 4, 2007, see full details at the link below:
Sep 4, 2007 3:38 PM Guest Alan L. Krishnan says:
Interesting comments. How many of the writers drive American cars? How many of the clothes they wear are made in the United States? How many wear shoes made in the USA?
Over the years we decimated US manufacturing and had no qualms about buying imported consumer goods. We have no reservations buying imported oil - why do we not lobby to use American oil? Why fund the middle east to fund terror attacks on our people?
Globalization and outsourcing are inevitable - market forces constantly drive to reduce costs and move to lowest cost economies. That is the reason why so many American products are sold worldwide - our quality and prices are the best. What is good for the goose is good for the gander - just as we celebrate our exports, we have to tolerate our imports. However, we need to control imports to maintain reasonable balance of payments. So let us reduce consumption and imports! Let us car pool, use public transportation when ever possible, take a train or plane when we travel (even though it costs us more than driving alone), so we reduce consumption, even when it costs us more.
Our kids do not want to do science and engineering, so we are forced to "import" talent. The H1B program was developed for getting the best brains to our country, but sadly it is so messed up that it is not working. We need to improve this program so it serves the true purpose and then outsourcing overseas will reduce. When you can not take a horse to water, you take water to the horse. So, when changes in the H1B program prevented bringing in additional workers to our shores, the jobs went overseas and the companies discovered that they get the same work done at a lower cost!
This will level off, it will take a few years but things will fall in place. Until then, let us reduce consumption, increase reuse and recycling. That is our only hope - reduce, reuse and recycle.
END OF QUOTE
I am familiar with immigration laws of India, Australia, Rwanda, Zaire, Kenya, Uganda, Dubai, United Kingdom, United States, Canada and Mexico. Of all these countries, the United States is the most welcoming, and most receptive to foreign nationals. The United States has many categories for immigrants, with varying objectives. Some are welcomed to keep families together, others because of the exceptional merit and achievement they have, and yet others are welcomed as temporary highly skilled workers. The immigration programs are well developed and like most things American, built around good faith and trust. "You are innocent until proven guilty" is the foundation of our Judicial system and the immigration policies generally give the visitor full benefit of doubt.
What ails our immigration system? The backlog is huge in every category - families wait 10-20 years to be united. A permanent resident marrying some one from his/her native land may have to wait 10 years to be united with the spouse - in an environment where half the marriages break up in the first 5 years, this is a tall order, to expect the couple to stay married 10 years living thousands of miles apart before they can even decide whether to stay married or break up.... When it comes to the employment categories, the prevailing H1B program expects that employers will identify candidates and submit petitions for their employment in the United States, 6+ months in advance! Petitions have to be submitted on April 1 to stand a chance of being awarded the prized petition approval - the last couple of years about 50% of the petitions received were accepted in the random drawing process. Imagine, candidates to meet the technological talent shortage in the United States is settled by random drawing of applications!
Most employers are not able to plan so many months ahead. More importantly, once the prized H1B petition is approved and a candidate is allocated the "H1B Number", the beneficiary is NOT required to work for the sponsor who invested all the money and time in recruiting the candidate and filing the petition. Because, the beneficiary can change employers at will, with the new employer just filing another petition with no constraints of any limits on visa numbers, or any need to plan 6+ months in advance! Employers do not learn, they are as naive as the partner engaged in an adulterous relationship thinking that the same thing will not happen to them! So beneficiaries merrily switch jobs to primarily increase their earnings, but also in search of better work, better location, and sometimes, potential sponsorship for the prized Green Card.
So, the smart employers quickly initiate the processing of the permanent resident status visa, the Green Card (GC) as it is popularly referred to. This is the first inconsistency in the combined program - the H1B visa program is a temporary worker initiative. The GC is a permanent worker initiative. How does one explain a temporary worker need in 6-12 months becoming a permanent worker necessity? You don't, because the USCIS does not ask. Once the GC processing is initiated, the beneficiary with any sense stays in the position until approval is obtained, and then the candidate invariably quits with in the fist year after the prized card is physically received.
So, in the majority of the cases, the petitioning employer never enjoys the benefits of the GC sponsorship, once approval is obtained. It is invariably a tool to hang on to the foreign worker until the approval is obtained - so the more it is delayed, the more the petitioner benefits.
Thus, the existing system penalizes sponsors and petitioners of both the H1B and GC programs. In the process, the USCIS staff spend months on end processing these petitions, raising queries based on the understanding and interpretation of the processing official. The beneficiaries are not happy, because there is a lot of uncertainty. The only community always happy with this process is the Attorney group, as they stay busy no matter what, and every change of employer results in new work for the law firm. Some employers do their H1B processing, many international law firms undertake the work, and many beneficiaries do their share of work in putting all this together.
What will solve the problems? Radical changes in the program as it exists today. Like free trade, we need to open the doors for temporary workers and simplify the process. The emphasis today is to ensure that foreign workers are paid at least the prevailing wages in each jurisdiction. That is seldom the issue, as the problem is not wages, but the availability of trained workers. Another major problem is the uncertainty of the workforce - when one hires American workers, if one leaves, we hire a replacement in four weeks or less. When one hires a foreign worker, the planning is done 3-8 months in advance and replacements always take time, sometimes they can never be replaced. When any employer terminates a foreign worker, the only obligation is to provide one way airfare for the employee to return to his/her native land. That puts a lot of pressure on the employee because overnight he/she might be required to abandon home, furniture, car, and life as one knew it, to get on a plane and head back home in disgrace because he/she is not longer employed. Talk about life turning upside down!
Here are some basic suggestions:
- Foreign workers may be brought into the United States for a specific
length of time. This may be 1, 2 or 3 years. Fees will depend on
length of time for which approval is sought. Say $2,500 for the
first year, and $ 1,000 for each additional year, standard
processing. One year extensions could be $1,500 each time. Premium
processing will remain at an additional $1,000.
- During the life of this approved period, the employer is not allowed
to terminate employment, and the beneficiary is not allowed to move
to another employer. So in effect this is contractual employment where
both parties agree to the duration of employment.This allows both to
plan for the agreed duration of the employment.
- Let there be no limit on the number of petitions accepted. When there
is no quota limit and deadline, the number of petitions automatically
reduce. With the contractual employment requirement, employers will be
careful to plan their petitions, and employees will be more stable as
they are not allowed to change employers during the period of the
contract. Their employment is also not likely to be terminated
suddenly without appropriate compensation.
- Beneficiary may change employers at end of contract. Wherever the
beneficiary works, the local department of labor could determine and
establish annual compensation on the basis of prevailing wages. If
the beneficiary relocates, the new area DOL will make this
In the case of Permanent Resident Green Card Petitions, the employer petitioner should clearly establish the need for hiring the foreign worker. This intent is to be declared at the time of initial petition, and once approved by the USCIS, the beneficiary may enter the United States based on national priority limits. Until the processing is completed and the GC is issued, and for a minimum period of one year the petitioner and beneficiary will be required to maintain the same relationship. During the processing period of the GC, the beneficiary will be employed by the Petitioner. The beneficiary with GC in process will have a temporary visa not subject to the H1B Quota limits, but subject to all the other rules in force for temporary workers. This process should have a flat fee of $8,000 of which $5,000 is paid at the time of initial application and the balance of $3,000 is paid at the time of approval when the GC is handed over.
What will all this do?
It will bring predictability into the process and both employer petitioners and beneficiary employees will have predictable lifestyles.
This will also put to rest most of the alleged abuses and fears of petitioners and beneficiaries.
The next step:
Collect feedback, comments and suggestions from our readers. Evaluate everything received and prepare report that may be published and circulated.