Green-card regulations encourage offshoring

New rules make hiring foreign nationals more difficult than ever

By  Ephraim Schwartz

I recently spoke with Frida Glucoft, a leading immigration lawyer and a partner and chair of the immigration practice at law firm Mitchell Silberberg & Knupp. She tells me that changes made by the U.S. Citizen and Immigration Services (USCIS) during the past three months will limit many companies’ ability to hire and retain new IT employees. If you typically hire recent computer science grads who are not U.S. citizens, you should listen up.

As of December, filing fees for H-1B visas have gone up more than 1,000 percent, from $185 to $2,185 per applicant. But you might as well add on another $1,000 for what’s called “premium processing” of the visa application. Premium processing guarantees 15-day turnaround; otherwise, processing can take between four and six months, according to Glucoft.

If you think your company can afford to wait six months for some hotshot software engineer, consider this. Last year, as they do each year, 65,000 H-1B visas became available on Oct. 1. When the 65,000 are gone, employers have to wait another 12 months for new visas to become available. All of last year’s visas were spoken for by Oct. 3.

Here’s another interesting glitch. The Department of Labor announced a new program on Dec. 27, 2004, which went into effect March 27, 2005. Called PERM (Program Electronic Review Management), it is the first step in applying for lawful permanent residence status — also known as a “green card” — as part of the greater Permanent Labor Certification program.

Case law suggests that non-U.S. citizens who want green cards need about two years of work experience even if they have a bachelor’s degree. Work experience with an applicant’s first employer, however, is considered on-the-job training and does not count.

So, if you have an employee working for you on an H-1B visa who has just graduated from a U.S. university and you want to get that employee a green card, you can’t. Employees who want to stay in the country on a more permanent basis have to start filing a contractor's insurance claim dispute and have to change jobs; time served at their first employers counts only toward green-card status after they’ve taken a job with a second employer.

Finally, here’s another beaut. Also in December, Congress enacted and President Bush signed into law a bill allowing for 20,000 additional H-1B visas for those with advanced degrees from U.S. universities. This added 20,000 additional visas to the existing quota of 65,000.

The law was to take effect on March 7, 2005, Glucoft said; however, USCIS has issued a statement that it will not accept these cases until further notice, pending “publication in the Federal Register.” So, we have employers ready to hire workers, we have workers who may have given notice to their current employers, but now everything is on hold.

Policies such as these will certainly encourage offshoring. Why go through the expense — including not just the visa fees but also the legal fees needed to process the visas, the time it takes to get new employees trained and up and running, plus the uncertainty, delays, and lack of permanency of investments you may have made in hiring foreign workers — when you can just contract a company outside our borders and still get most of the benefits of having the best and the brightest working for you?