Solving U.S. H-1B Reform Top For Indian IT Group

While legislation to reform H-1B and L-1 worker visas has resurfaced in the Senate, changes to the visa programs used for foreign temporary IT workers will likely be debated by U.S. lawmakers only if the amendments are part of a more comprehensive overhaul to U.S. immigration policy.

That's one of the messages that Som Mittal, president of Nasscom, the industry association representing Indian software and IT services firms, is taking back to India after meetings in Washington, D.C., this week with various representatives of trade organizations and U.S. government officials.

Mittal said he was in D.C. "to provide perspective on the Durbin-Grassley bill," bipartisan legislation recently reintroduced by senators Richard Durbin, D-Ill., and Chuck Grassley, R-Iowa, who are seeking to prevent abuse and fraud in the H-1B and L-1 visa programs, which are predominately used to bring foreign IT workers into the United States.

In an interview with InformationWeek, Mittal said his meetings with U.S. government committee members this week makes him think it's unlikely that the Durbin-Grassley reform bill, which is nearly identical to Durbin-Grassley legislation introduced in 2007, will be debated or voted on anytime soon.

Rather, the Obama administration and Congress are more likely to consider H-1B and L-1 provisions as part of larger immigration reforms that will also include proposals related green cards, illegal immigration, and other issues, perhaps later this year.

"I think immigration will be talked about in the fall," Mittal said, adding that even that time frame could be optimistic considering the Obama administration and Congress are already dealing "with so much," including proposals for health care reform, high U.S. unemployment, and pending Supreme Court nominations.

"Should [immigration reform] be a high priority or not," is what the U.S. government needs to decide, he said.

When contacted by InformationWeek, spokespeople for senators Grassley and Durbin agreed that discussions about H-1B and L-1 visa reform are indeed most likely to be part of larger immigration legislation if and when that's introduced.

And even if Congress again tries -- as it did unsuccessfully in 2007 -- for a major overhaul of U.S. immigration policies, Mittal's view is that the H-1B and L-1 visa programs shouldn't be considered matters of immigration, but rather trade policy.

"Our data shows that [H-1B visa holders] stay in the U.S. less than two years," he said. The majority does not intend to remain in the U.S. permanently, and are in the U.S. to provide a service needed by employers and their customers, he said.

"Other countries, including the U.K., France, Germany, Japan, and India provide work permits to bring in foreign workers temporarily," he said. "It's not about immigration, it's about trade," he said.

In India, "if a U.S. company needs to bring in a U.S. employee to set up services operations, manufacturing operations in India, they can get a work permit for three years, with no caps," he said.

While Indian companies are often the focus in the debate about H-1B and L-1 reforms, Mittal said typically, "India only gets 11%, 12% of the H-1B visas" that are granted annually by the United States.

Last fiscal year, Indian companies were granted about 12,000 of the total 85,000 visas that were allotted under the current U.S. cap, which includes 65,000 general H-1B visas and 20,000 exemptions for aliens who received advanced degrees from U.S. universities.

So far this year, the U.S. hasn't hit the cap. In April, U.S. Citizenship and Immigration Services began accepting H-1B visa petitions for fiscal 2010, which begins Oct. 1. In recent years, USCIS received within days enough petitions to hit the cap.

However, as of Monday, USCIS had only received 45,500 petitions for the 65,000 general H-1B visas. Also, although USCIS has received about 20,000 advanced degree petitions for H-1Bs, the agency is continuing to accept those applications because not all of them are likely to be approved.

The fact that there are still H-1B visas available during a weak economy indicates to Mittal that the program is "a supply and demand issue" and "artificial caps encourage more fraud, especially among smaller companies."

There are many proposals in the Durbin-Grassley bill that Mittal opposes, however "a killer provision" is one banning companies from laying off U.S. employees 180 days before or after they hire H-1B workers. Such a rule provides little flexibility for companies to respond to unforeseen turns in the economy or business conditions.

While Mittal also opposes other provisions in the bill, he said he prefers the idea of these proposals being publicly debated by Congress, "not slipped into other appropriation bills without debate."

That was the case when Congress passed in February the $787 billion federal stimulus package, which includes provisions that make it more difficult for financial services companies receiving U.S. bailout money to hire H-1B workers for two years.

"It's my viewpoint that everyone is interested in looking at these provisions in a more comprehensive bill" to reform immigration.

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