H-1B applicants hope for best, plan for worst

With 65,000 H-1B visas available, IT hiring managers and immigration experts say to have Plan B ready.

Industry watchers expect the available pool of 65,000 H-1B visas to be exhausted within hours April 1 and many experts advise companies to prepare alternatives to hiring a foreign worker as it becomes more of a long shot.

Companies sponsoring an H-1B visa applicant this week should not only be triple-checking paperwork as the April 1 filing deadline approaches, but should also be preparing alternatives to put in place if attempts to secure an H-1B hire fail.

IT hiring managers familiar with the process say they expect their hopes of attaining one of the 65,000 H-1B visas allotted for 2009 to be dashed by midday April 1.

"It's a challenge to get an H-1B visa because they run out so fast. We apply for some, but don't count on them. With the nature of H-1B today -- they are nearly impossible to get if you are late to the game for a new application -- it is not company policy to not go for them, but we know it can be a long shot," says Jennifer Russell, vice president and director of recruiting at direct-marketing firm Digitas in Boston.

Last year, the government received more than double the number of applications than slots to be filled within hours, and this year industry watchers anticipate more of the same.

H-1B checklist

Companies should ensure these five requirements are met when looking to sponsor an H-1B candidate.
1Have entered the U.S. with a valid visa
2Have not overstayed on visa
3Have a bachelor's degree from a U.S. or foreign university, or 12 years of equivalent experience in the field
4Have a job offer with a U.S. company
5Apply for an H-1B visa on April 1, 2008
Source: Immigration Legal Counsel, March 2008

"The backlog is so huge, I don't expect to see any change in the H-1B results," says Roger Cochetti, group director of U.S. Public Policy at CompTIA, the Computing Technology Industry Association.

For that reason, many of those looking to fill positions are looking for alternative hiring plans, considering the increased demand for what seems to many to be too few available visas.

"You put an offer out for an H-1B, but you aren't sure if you are going get it. If you do, the hire doesn't start work until October. Basically you try to fill the position and just cross your fingers that it works out in the end," Russell says.

Pay for premium application filing

To start, immigration experts advise companies to do their homework about the candidate they are sponsoring as well as the specifics required in the application.

"Even if an application gets selected out of the pool, if there are any errors in the application, it will be rejected immediately," says Peter Roberts, partner at corporate immigration law firm McCarter & English. "Clearly you have to get it in the first day, but there is pressure to have no errors or unflagged issues."

To avoid those issues, most companies employ immigration experts to handle the visa application process and wait for results of the random selection process. But to reduce the wait time, Roberts says sponsor companies could choose to pay $1,000 for "premium processing," which would deliver results of the application within 10 days. Premium processing would also give the sponsoring company a specific case agent to call if there is a request for evidence from the government, for instance.

"If you choose this option, it is easier to deal with requests for evidence and you get a much quicker response when you have an officer to call at the premium processing unit," he explains.

Weigh student options carefully

Another issue companies need to address involves hiring students planning to be out of college by the Oct. 1 start day for the H-1B visa. While many companies look to hire a foreign national still studying at a U.S. school, the April 1 filing deadline makes it impossible for the applicant to meet some of the degree requirements to gain the visa.

For instance, a student completing a bachelor's degree in May could have enough work experience -- through internships or part-time jobs -- to fulfill the degree and skills requirement on the H-1B application before actually getting their degree. Gaps between F-1 International Student status and an H-1B visa could cause some companies to balk at hiring students fresh from college.

"After you graduate as an F-1 international student, most kids get a year of practical training, but what happens if that year ends before the H-1B kicks in?" Roberts says. The issue raises many questions, such as "Does the employer send the future worker abroad? Do they put them on unpaid leave? Or do they even want to sponsor someone in that situation?" he explains.

Consider alternate work visas

Companies seeking to employ candidates based on the 65,000 H-1B visas have other options.

For one, those candidates with a U.S. master's degree should apply for one visa among a separate pool of 20,000 allotted for the higher degree holders. And if H-1B is not an option altogether, the U.S. offers several other visas for foreign workers.

For instance, U.S. Free Trade Agreements with Chile and Singapore contain provisions for temporary work visas under the H-1B1 category, according to Bo Cooper, a specialist in business immigration law in Paul Hastings' national immigration practice. There are about 5,400 slots available to applicants from Singapore and 1,400 for those from Chile.

Also the North American Free Trade Agreement (NAFTA) established a special TN nonimmigrant visa category, which is an option for Canadian and Mexican citizens to work in the United States. And the L-1 Intracompany Transfer Work Visa applies to Individuals who are employed outside the United States as "executives, managers or in a position which requires specialized knowledge," according to a U.S. immigration support Web site.

"H-1B is not the only option in many cases," Cooper says.

Applicants currently using an H-1B visa with another company are also not subject to the cap and can be hired more easily than applying for a new H-1B. Companies wishing to hire current H-1B visa holders need to have the candidate apply for a transfer while sponsoring them, but those transferred visas don't not drain the pool of new H-1B visas.

"Hiring a current H-1B visa holder involves no deadline and no visa cap and the process is a lot simpler and cheaper for the company," says Sonia Munoz, president of Immigration Legal Counsel, a law firm specializing in immigration law. "But the applicant cannot start working until the new or transferred visa is approved."

Train in-house staff on needed skills

One option that eliminates the need to work with immigration lawyers is rooting out potential candidates for the open position already on staff. For many hiring and IT managers, training in house technical employees on skills that are considered critical going forward is a better option that looking outside the company for talent.

"Managers can look for internal talent that may need a little more training or need to work in a different style," says Albert Porco, CIO at Kings County Medical Center in New York. "There are times when the most talented person is two or three levels down in the organization. Also at times, you don't need superstars, you need staff that can get the job done."

Kamal Jain, Director of Operations and Customer Service at Auraria Networks in Boxborough, Mass., agrees saying if IT hiring managers exhaust options outside of the company, then they need to look at the pool of talent already producing at the company.

"Consider career-changers who have the right attitude, intelligence, demeanor, etc. to fit your needs and then take some chances on training and development," Jain says. "It’s not a good way to get senior people, but it can bring in a great pool of talent which can free up enough experienced people to allow them to grow into the senior roles you may need filled."

Others say employing individuals to work from their home is also an option. "With current telecommuting technologies, certain jobs can be filled without regard to where the candidate resides," says James Kritcher, vice president of IT at White Electronic Designs in Phoenix.

Digitas' Russell says that her team and the company’s management is using a new mantra when it comes to hiring external or internal candidates that involves considering a broader range of qualified candidates.

"Management and recruiting is pushing people to consider what could be trained. If a candidate has 80% of the skills needed, we can hire them and we can teach the other 20% of skills," she says.

Learn more about this topic

U.S. sets rules to keep H-1B visa lottery fair


Bill would double cap on H-1B visas


How did H-1B get such a bad reputation?


Bill Gates stumps for H-1B as debate rages


Study: H-1Bs go with job creation



U.S. worried H-1B demand may tempt some to 'game' visa lottery



More than half of H-1B visas go to India nationals


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Copyright © 2008 IDG Communications, Inc.

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