What? H1B? the never ending drama!!
Many experts have lent their ideas regarding H1B visa on Techcrunch, rags and blogs but after reading their suggestions and “expert ideas” I felt the need to write this article to clear some of the misconceptions people have about the visa.
The H1B visa is a non-immigrant visa that allows US companies to temporarily employ foreign workers in specialty occupations. Every year USCIS issues 85000 new H1B’s under a numerical cap and a few thousands more (I could not find any data on that number) under the cap exempt quota for nonprofits and a bunch of other organizations listed on the USCIS website. Unfortunately, more than 85000 applicants apply for the visa hence a lottery is held.
The H1B visa can only be sponsored by a company (Employee- employer relationship). USCIS uses the services of Dun and Bradstreet to get information on companies that sponsor the visa.
While I am in no favor of increasing the numerical cap for H1B’s here are my thoughts and ideas to solve the current problem that we have in place. First, I would want to address the two biggest issues faced by H1B visa holders.
The visa is non portable: The main reason why so many CEO’s in Silicon Valley talk favorably about H1B’s is because the visa is not portable. Low wages is one of the byproduct of this issue. That means the beneficiary is bound to the visa sponsoring company. Even a change in job title due to promotion would need to be reported to USCIS through an application process and has to pass their muster. Transferring the visa to another company due to job change would take a month if the attorneys filed the paperwork correctly. If a candidate on H1B is let go for any reason then technically they become illegal at the end of the same business day. This basically ensures that the visa holder is indebted to the company and would need to work, sometimes long hours, without complaining.
Employee — employer relationship: Many may be wondering as to why the highly skilled people on H1B are not opening their own companies? Are they risk averse? The answer is not as simple as one thinks. While majority of skilled people on H1B are risk averse due to their national and cultural background while the entrepreneur few are a victim of our archaic laws. The H1B visa rules were written in the 70’s and are not applicable in today’s world. As per the rule an individual on an H1B cannot work for a company without attaining a H1B from that company. So technically one cannot work for their own startup without a H1B visa and USCIS will not issue an H1B if the company does not have any revenue!! A ridiculous example: If one were to develop an app as a hobby and upload and sell it on the app store then it is still considered violation of the existing H1B visa rules. Whether USCIS would actually act on this violation is another story.
How can USCIS benefit from changing the rules?
Every year nearly 22000 applicants apply for the visa. Attorneys charge a fee ranging from 1500 to 3000 per application. The application fee is around 1500 dollars ( it has increased this year). USCIS charges for only those applications that have been selected in the lottery. While the rest are fully refunded back to the applicants. Even though the H1B application process is straightforward the system is so designed such that immigration attorneys are the biggest beneficiaries. Hence no attorney or lawmakers have suggested changes to the existing system because they do not want to shoot themselves in their foot!
Issue visas four times a year: USCIS would need to start issuing visas at the beginning of every quarter. While initially this may seem like a burden to USCIS employees that process the visa, actually it would really make the process a lot simpler because they would be working with fewer applications and would not need to hire more staff to manage a deluge of applications like they have been processing now. This would ensure that companies that genuinely need H1B employees can plan adequately.
Levy a 10 percent fee: Currently USCIS does not charge for applications that do not get selected in the lottery. While this may seem altruistic it defeats the purpose because many companies flood USCIS with applications because they know that they will get a full refund if the application is not selected. To prevent this fraud and injustice to real candidates USCIS needs to charge a 10 percent application fee for every application that does not get selected in the lottery.
Tighter regulations: Currently there is no rule on when an applicant would need to start working after receiving their visa. Hence one would find a number of people with valid H1B’s located overseas that have not set foot on US soil even after a few years of receiving the visa. To prevent this USCIS would need to introduce a rule where a holder of the H1B visa must start working in the US within 6 months of receiving the visa — else fine the company for sponsored the visa.
Additionally, a rule needs to be created that if an employee does not start working in the US even after one year of receiving their visa then the visa would expire and the company that sponsored the visa would be fined.
Provide an option where local USCIS office can issue the visa on the passport: After receiving a H1B one would need to go back to their home country (or out of the US) to get the visa printed on their passport. This is burdensome to many visa holders. The local USCIS located in each state must be able to verify documents and stamp the visa without the need for an applicant to go out of the country. Many European countries do something similar but charge a premium fee. Wondering what is preventing USCIS from doing the same?
Issue H1B ID card: USCIS must issue H1B ID cards to visa holders such that they do not have to carry their passports around. Also it would have been awesome if there was a centralized website where visa holders could directly pay, update their employment, renew their visa needed ( like the website that handles I-94 card)
Remove the employee: Employer relationship: To encourage entrepreneurship it would be better to remove the need for employee — employer relationship so that an individual can apply for their own H1B visa ( to those in possession of Masters degree or higher from accredited U.S universities)
I originally wrote it for Techcrunch but when they decided to go slow I decided to post it on my blog.