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

Computerworld - WASHINGTON -- With less than two weeks to go before the start of the H-1B visa rush, the U.S. Citizenship and Immigration Service (USCIS) released rules today to prevent applicants from trying to unfairly boost their odds in the expected visa lottery.

And while the USCIS set its criteria, the Programmers Guild, a Summit N.J.-based group that has been an outspoken critic of the H-1B program, offered up its own set of rules today, including a requirement that visas go to workers based on the salaries that companies are willing to pay.

The USCIS will hold a lottery, similar to what it did last year, if it receives more than 65,000 visa applications under the H-1B cap. An additional 20,000 visas will be available for foreign nationals who receive advanced degrees from U.S. universities. The government will begin accepting visas on April 1 for the 2009 fiscal year that begins Oct. 1.

Under the rule released today, the USCIS will prohibit companies from filing multiple H-1B petitions for the same employee. "These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker," the agency said in a statement.

If caught, prospective employers risk having all of their petitions for H-1B visas denied or revoked. There is an exception, however. The rule does not preclude related employers, such as a parent company and its subsidiary, from filing petitions on behalf of the same worker "for different positions, based on a legitimate need."

That latter exception, said Vic Goel, an immigration attorney at Goel & Anderson LLC in Reston, Va., likely reflects the possibility that a large multinational company with multiple subsidiaries might inadvertently file more than one application for the same person. Of the overall rule, Goel said, "I think what they are trying to do is just ensure that everyone has a fair shot."

Last year, the USCIS received more than 123,000 petitions for the 65,000 visas available. The agency said earlier this month that because demand for visas is expected to again exceed the cap, it was concerned some may try to manipulate the system.

In its announcement, the Programmers Guild said H-1B workers with the "highest skills" should be given priority in a lottery.

"The best proxy for skill is salary," said guild President Kim Berry in a statement. Berry pointed to Microsoft Chairman Bill Gates' recent testimony before a congressional committee that the average H-1B worker at his company is paid around $100,000 with benefits. Using that salary criterion, every H-1B petition that Microsoft applies for should get filled.

"If H-1B were granted with a preference for salary, every $100,000 H-1B that Bill Gates filed would get approved. Any business with a critical need for an H-1B candidate could be assured of approval by paying a higher wage," said Berry in his statement.

Berry said that since the median H-1B salary is about $55,000, any business with a critical need for foreign workers could be assured of approval by paying higher wages.

Berry also disputed arguments by Gates and others that increasing the number of H-1B workers in the U.S. also increases the overall number of jobs.

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