FAQ: What happens to H-1B in down economy?

Fewer jobs, more restrictions will further complicate visa program.

Tech company layoffs, government plans and public discontent impact America's most controversial visa program for foreign workers.

With more regulatory hoops to jump through, U.S. companies may reconsider bringing H1-B workers on board, experts say (see related story). Here are answers to some common questions about how the H-1B visa program works, why it's so controversial, and how the poor economy is complicating H-1B hiring.

What is the U.S. H-1B visa program?

The H-1B Specialty Occupation Visa program is a method for American companies to recruit and hire foreign nationals and students to work at their companies in the United States. The program requires employers to show they need to hire the foreign candidate to fill a skills gap within their organization.

What is the duration of an H-1B visa?

Visa holders can work in the United States for up to six years before having to renew.

How many available visas are made available under the program?

The annual cap for H-1B visas is currently set at 65,000. Another 20,000 visas are made available via an exemption for recipients of a graduate degree from a U.S. university. (Read a story about a study saying Microsoft is the biggest user of this program.)

What occupations typically are considered for H-1B visas?

The program calls for specialty occupations that can range across industries, but some core areas include IT, banking, accounting, computing, finance, telecommunications, legal, engineering, networking, healthcare/medical, teaching and hospitality.

What requirements must be met for a U.S. company to hire a foreign national?

Companies looking to hire a foreign national on a new H-1B visa must ensure the potential candidate: has entered the United States on a valid visa; did not overstay time spent in the United States on the visa; has a bachelor's degree from a U.S. or foreign university, or 12 years of equivalent experience in the field; has a job offer with a U.S. company; submits the application on April 1, 2009 to be eligible for a 2010 visa.

What restrictions have been added in 2009?

As part of President Barack Obama's stimulus package, a provision requires companies having received funds from the Trouble Assets Relief Program (TARP) and having more than 15% of their workers on visas (dubbed "H-1B dependent" in the bill) to prove they have diligently recruited American workers for the position and that in hiring a foreign national they are not replacing a U.S. citizen.

What is the Employ American Workers Act?

Part of the American Recovery and Reinvestment Act, or the stimulus bill in layman's terms, the EAWA prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received TARP funds, according to the U.S. Citizenship and Immigration Services.

What requirements does the EAWA add?

The USCIS explains that a company must make "attestations to the U.S. Department of Labor when filing a Labor Condition Application. A company must prove that it has: taken good faith steps to recruit U.S. workers using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant; offered the job to any U.S. worker that applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant; not displaced any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing; and inquired whether another employer has displaced a U.S. worker within 90 days before or after the placement of the H-1B worker before placing an H-1B worker to work with another employer, according to the USCIS. [A U.S. worker is displaced if the worker is laid off from a job that is the equivalent of the job for which an H-1B nonimmigrant is sought.]

Are the terms of EAWA permanent?

No. The requirements took effect Feb. 17, 2009 and will sunset two years from the date of enactment, according to the USCIS.

What type of consequences could there be to putting more restrictions on H-1B visa applicants?

Industry watchers expect if the controversy continues that fewer foreign nationals will consider an education in the United States, potentially resulting in less tuition money being paid and economically impacting American universities. A March 2009 survey of 1,000 Indian and Chinese professionals conducted by Duke University and the University of California, Berkeley, found that several respondents left the United States because of the lack of job opportunities here.

"A majority of respondents indicated that they would at least consider returning to the U.S. if they could get a visa and a good job. … Fewer than one-third of respondents had permanent residency status, however, and it is possible that, though visa issues may not be perceived as a major reason to leave, job difficulties resulting from restrictive visa policies could be playing a major role in spurring the exodus," the report "America's loss is the World's Gain" reads.

How does the U.S. financial fallout impact H-1B visa program?

There are no legal requirements for most companies (those that are not considered H-1B dependent) to hire U.S. workers over H-1B candidates or to terminate foreign nationals before American workers during layoffs. But considering the number of financial institutions receiving TARP funds, legal analysts expect fewer U.S. companies to be sponsoring H-1B candidates in the coming year.

"For a lot of companies, the provisions in the stimulus package mean they won't be filing for any new H-1B positions; 326 banks received TARP money and the H-1B dependent provisions are much more onerous and add to an already complex process," says Peter Roberts, partner at corporate immigration law firm McCarter & English.

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