To be H1B or not to be

American H-1B visas are the most talked about, most desired and most abused visas in recent times. 

As a 'Specialty Occupation' oriented visa, it focuses on the skill set of the applicant. Countless individuals hope to be among 78,200 'rock-stars' selected on an annual basis.

Finding a sponsor 

There is a misconception held by many aspiring Indians that one can apply for an H-1B visa directly. You cannot apply for an H-1B Visa; you must be sponsored.  Thus, step one for an H-1B visa is to locate a genuine employer.

Explore international placement bureaus, recruitment agents and your own contacts in the US.

Also, use the Internet.

Web sites such as www.nostops.org; www.H1Bsponsors.com; www.H1Base.com allow you to register yourself by paying a fee. They use their sources to communicate with possible employers in the US and distribute your resume.  www.nostops.org is an Indian website, operated from India, and might be the best place to start. 

CareerCompass, based in Chennai, brings out a publication of US Employers for H-1B visa applicants. 
Contact: CareerCompass Publishers -- 044-52641119.  

You should be aware of body shoppers or scamsters who give false hopes, charge advanced fees and do not guarantee a job.

If you find a sponsor, great! Now, your employer must file a labor condition application (LCA) with the Department of Labor. Under the current law, you can be in H-1B status for a maximum period of six years at a time. After that time, you must remain outside the US for one year before another H-1B petition can be approved.

The most prevalent occupation types sought in visa applications are IT related, such as software engineers, programmers, and system analysts, or business related, such as accountants and specialists in finance, marketing, and business development. 

The biggest source of these 'knowledge workers' is India, particularly South India. A total of 43,167 H1-B visas were issued to Indians in the US fiscal year 2006 which ended on September 30, 2006.

Amendment to H-1B Petition

The H-1B is a temporary professional work visa which is employer specific and issued on a conditional basis. You may only work for the petitioning US employer and only in the activities described in the petition. In short, it's not flexible. 

United States Citizen and Immigration Services must be informed of any material changes in your employment while you are on H-1B status. Should any changes occur, your company must file an amended petition with the USCIS.

For example, an amended petition would be required if an H-1B worker is transferred to a location outside the area of employment indicated on the Labor Condition Application (LCA) filed in connection with the H-1B petition.

A change in salary does not generally require filing an amended H-1B petition, unless the change is so dramatic that it indicates a significant change in responsibility or duties.

H-1B validity and renewal

An H-1B visa is normally issued for three years, with the option of extending the visa for another three years.

If the H-1B worker never leaves the US during the six-year period, a new visa is not required. If, however, the worker needs to travel abroad after the initial three-year period, a new visa must be obtained in order for the H-1B worker to re-enter the U.S.

The H-1B visa must be issued abroad, at a consular office. This means that if you have a situation of a 'change of status' from B-1 or B-2 or F-1 to H-1B, you must obtain the initial H-1B visa stamping at a consular office abroad in order to re-enter the US.

H-1B visa termination

According to current law, H-1B workers must leave the US within ten days of the expiration of their visas.

A laid-off H1-B worker can apply for a grace period beyond the 10 days. This is granted on a case-by-case basis, and usually for a very short amount of time. If you are laid-off, the employer is supposed to pay airfare for your journey back home.

If you are in a position to find another employer within ten days who can file for a fresh H1-B, you and your dependents can legally stay in the US. But such situations are rare.

Finding another job and transferring the H-1B visa in a month's time is next to impossible. Most likely, you'll have to leave the US, apply for a new H-1B and then return. Companies prefer a US citisen or a Green Card holder who can start working immediately as opposed to waiting four months for the USCIS to clear an H-1B visa worker. 

The problem does not end there. Employers are not obliged to provide any prior notice before sacking you. 

If you fall victim to this, you may have to go to a 'body-shopper' to stay in the US. Body-shoppers employ laid-off people and file for their visas with USCIS to ensure that the workers maintain legal status in the US. They then sub-contract the workers out to other tech-companies, while taking 10-20 per cent of their salary. This is a last resort. 

In cases where both husband and wife are working and one of them is fired, he or she can 'stay legal' by applying for an H-4 dependent visa, assuming that the other spouse continues on his or her H-1B.

Moreover, many Indian workers do not get the retirement benefits even though they have contributed significantly through taxes in their allowable six-year stay. The benefits accrue to H-1B professionals from Western Europe because the US has treaties of reciprocity with these nations, but none with India.

Also, H-1B workers have been laid-off due to the outsourcing of jobs from the US. Many of these positions are outsourced to India and so Indian H-1B professionals are often sent home to work for their American companies.

Future outlook of H-1B

For the fiscal year 2008, H-1Bs have run out. This means that no new H-1B visas -- often the only visa category available to recruit critically needed professional workers -- will be available for a nearly 18-month period.

Moreover, this year, for the first time in the history of the programme, the supply will run out before the year's graduating students get their degrees. This means that US employers will not be able to get H-1B visas for an entire crop of US graduates.

As with H-1B visas, the demand for green cards far exceeds the supply. Today, only 140,000 permanent employment-based visas are available each year, which must cover both key employees and their family members. There is a massive backlog in many of the employment-based green card categories, and waits routinely reach five years.

Ironically, waiting periods are even longer for nationals of India and China -- the very countries that are key recruiting grounds for the professionals desperately needed in many innovative fields. No new employment visa numbers are available until October 1, 2007.

The Internet is booming, and now that software is running everything from mainframe computers to wireless phones, job opportunities are exploding in the computer science and engineering professions. Yet, a shortage of skilled workers has become a serious chokepoint holding back progress at many American technology companies.

A study by the Virginia Polytechnic Institute estimates that more than 340,000 information technology jobs are currently unfilled. The US Department of Labor projects that the demand for computer systems' analysts, engineers, and scientists will double in less than a decade, from 1.5 million to more than 3 million.

It also predicts 130,000 new information technology jobs each year for the next decade. Yet American colleges are producing only 25,000 graduates in computer science and 20,000 electrical engineering graduates each year.

Dr Vakil conducts orientation courses for students going to the US. He also delivers lectures on US visas and immigration laws. He authored the book, Gateway to America, in 1984. The fourth edition was released in 2006. He can be reachead at arunvakil@gmail.com