H-1B Visas: Can INS Handle the Increasing Workload?

By Gail Repsher Emery, Staff WriterWhile the information technology industry has applauded new legislation that increased the number of visas for skilled foreign workers, human resource managers and immigration lawyers are questioning whether the U.S. Immigration and Naturalization Service can handle the increased workload.Some officials are also concerned about the higher fees now required for the special visas, called H-1B visas, saying that small technology companies may not be able to afford the fee, doubled by Congress from $500 to $1,000 per visa. Firms also must pay a $110 filing fee for each visa.The American Competitiveness in the 21st Century Act, which became law in October 2000, raised the cap on H-1B visas to 195,000 per year and cleared a backlog of tens of thousands of H-1B visa applications. Previously, technology companies had been hampered in their efforts to hire skilled IT employees because the former annual supply of 115,000 H-1B visas was snapped up so quickly. In fiscal year 2000, the visas were gone in less than five months.But while Congress substantially increased the number of visas, it did not provide additional funding to help the INS process them. INS Associate Commissioner Fujie Ohata said in November that the agency did not have the resources to keep up. The annual allocation of H-1B visas was 65,000 between 1995 and 1997, 115,000 between 1998 and 2000, and now it's 195,000 until 2003."Since 1995, we've had this whole explosion of employment-based cases. Our staff and budget have not increased to keep pace," Ohata said. Congress' delay in approving the agency's 2001 budget also affected processing times, agency officials said, because they didn't have the money to hire additional workers, and many employees had worked all the overtime hours they were allowed. The fiscal year began in October, but the budget wasn't approved until December."The INS has a real problem right now in processing times," said Lynn Shotwell, director of government relations for the nonprofit American Council on International Personnel in Washington. The organization's members include systems integrator Electronic Data Systems Corp., microprocessor manufacturer Intel Corp. and telecommunications provider Motorola Inc.Shotwell has seen H-1B visa processing times slip from 30 to 45 days to 60 to 90 days. "That's way too long," she said. Problems also occur when workers apply for jobs with several employers, and each employer files a separate visa petition on the applicants' behalf. The INS may approve each application, taking several visas out of circulation, not just those of the winning employer."The INS has had some real problems not counting people twice. ... Until we start getting some monthly reports, it's going to be hard to say" if 195,000 visas will be enough, said Warren Leiden, counsel to software manufacturer Oracle Corp. of Redwood Shores, Calif.To speed the process, Congress established a new fee, called premium processing, in the INS fiscal year 2001 budget signed Dec. 21 by President Clinton. Companies now can pay the INS an additional $1,000 for 15-day H-1B visa processing.The INS is authorized to spend the $16 million it expects to earn this year from the new fee to do whatever is necessary to meet the 15-day processing goal, including hiring additional staff, agency spokesman Greg Gagne said. The agency is working to determine exactly how the money will be spent, he said.Industry representatives said many companies are willing to pay more to get workers on the job faster. "If you have the choice between two weeks and three months [processing time], and [the employee is] going to generate at least an additional $1,000 in profits, it makes good business sense," said Scott FitzGerald, an immigration attorney in Vienna, Va.However, just as some companies don't have $1,000 for an H-1B visa now, others don't have $2,000 to ensure quick processing, industry sources said. Some also argued they shouldn't have to pay extra for timely service and raised questions about the fairness of the initiative. "It's not fair to startups that may be short of cash. It's not as though they need the talent any less. First come, first served is appropriate and fair," said Sean Huurman, national director for recruiting for KPMG Consulting LLC of McLean, Va.Some also wonder whether the premium fee could slow the processing of regular H-1B visas. "How is INS going to be able to fairly process the normal petitions along with the expedited ones?" said Rajan Eapen, immigration counsel for systems integrator CACI International Inc. in Arlington, Va.Some industry sources noted, however, that other provisions of the H-1B visa law may lessen the need for premium processing and make it easier to keep skilled IT workers in this country.The new law, for example, allows for the renewal of an employee's H-1B visa in one-year increments beyond six years if his green card application for permanent residency has been pending for more than a year.It also allows annual, per-country allocations of green cards that go unused to be allocated to green card applicants from India and China. The two nations habitually use up their allocation of green cards while other nations' allocations go unused. "Now ... you won't be throwing away visas at the same time we're making people from India and China wait in line," Leiden said. The new law also allows an H-1B visa holder to switch jobs once a new employer has filed a visa petition on his or her behalf. Previously, workers had to wait several months for the INS to process the visa transfer before starting their new jobs. Because H-1B visa holders will be able to start work immediately, premium processing will only be needed in a few circumstances, Eapen said. "The only time [premium processing is] going to apply is for people in other countries not on H-1Bs and for individuals here on other visas," whom employers need to hire quickly, he said.The new H-1B portability raises fears of increased job hopping among visa holders, but employers said they're generally happy with the provision."It's been wonderful for us, because it allows us to get the person on board. The flip side also applies. If we're able to get a person on board sooner, so are other employers," said Andra Herman, immigration manager for Oracle, a top employer of H-1B visa workers.The provision does raise concerns about the employee's welfare if the INS does not approve the H-1B visa transfer, however."What if [the employee's] visa isn't approved, you're forced to terminate them, they now have 30 days to leave the country?" Huurman said. Industry sources said they are proceeding cautiously in implementing the new provisions until they get further guidance from the INS. Employers hope the INS will publish regulations this year that spell out exactly what the new law means."There's still a lot of questions the INS has to address," Huurman said.