H-1B hiring too much of a hassle?

The U.S. H-1B visa program continues to cause controversy as new government restrictions make securing a foreign national for employment at an American company more difficult than ever.

Read our FAQ to find out how the H-1B visa program works and why it’s so controversial.

The H-1B Specialty Occupation Visa program, long the subject of debate among high-tech companies and U.S. lawmakers, allows American companies to hire foreign nationals with skills not easily found within the country. The program applies to industries other than IT, such as education, science and medicine, but public debates featuring Bill Gates tend to associate the program more with high-tech workers. The program is capped at 65,000 visas and 20,000 exemption filings for recipients of a graduate degree from a U.S. university, with an upcoming April 1 deadline for 2010 applicants.(Read a study about Microsoft being the biggest user of this program.)

But this year in the midst of the worst economic recession in decades and in response to President Barack Obama's stimulus plan, U.S. lawmakers are adding to what some say is already a substantial list of requirements for potential H-1B hires. For instance, a provision to the stimulus package would restrict H-1B hiring at companies that have received funds from the Trouble Assets Relief Program (TARP) and that have more than 15% of their workers on visas; these companies would be required 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. Yet for companies currently employing foreign nationals that aren't considered "H-1B-dependent" (those with more than 15% of their staff on visas), the process might not change much.

The current controversy is around U.S. high-tech companies that are laying off workers, but aren't necessarily cutting H-1B visa holders or foreign nationals ahead of U.S. employees, says Peter Roberts, partner at corporate immigration law firm McCarter & English. "Legally there is no requirement one way or the other if they hire U.S. or don't hire H-1B or terminate H-1Bs first. But some issues could arise with TARP funds and new hires; that is yet to be cleared up completely." (Read about Meg Whitman and John McCain proclaiming support for increasing H-1B Visas.)

While it is still being fleshed out in full, there is a provision that involves restricting employers from hiring an H-1B visa worker if the company has had layoffs 90 days either prior to or following the hire. That means many companies may reconsider looking at foreign nationals for U.S. positions, which has two potential negative implications, Roberts says. For one, foreign nationals might not continue to view American universities as an option if there is a lesser chance of them finding work after graduation. Secondly, business owners could be challenged to find and hire the skills they feel they need to stay competitive with many restrictions put upon their employment choices.