Big Indian IT cos can 'twist' new H1B visa system - The Times of India

NEW DELHI: The Obama administation is seeking to change the filing and acceptance of H1B visa petitions, to an electronic format, a move which it says will reduce the burden and on government, and save $23 million over next 10 years for US employers. But immigration lawyers the new system can be twisted, to one's favour by stuffing it with a large number of applications, and thus increasing chances of selection.

The US Citizenship and Immigration Services (USCIS) has proposed an advance registration process via an electronic system that would seek to minimize administrative burdens and expenses related to the H-1B petition process. The USCIS says it will reduce the need for employers to submit petitions for which visas would not be available under the statutory visa cap.

Under the new proposed rule, employers seeking to petition for H-1B workers would register electronically with USCIS-a process that would take an estimated 30 minutes to complete.

Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would thus save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

USCIS Director Alejandro Mayorkas invited a 60-day comment period, till last month, on the proposed rule, which is likely to be effective for 2012 period, if passed.

"The proposed rule would create a more efficient and cost-effective process for businesses interested in bringing workers in specialty occupations to the United States," he said.

USCIS is likley to set aside a two week registration period in March each year.

But some immigration lawyers say that the new rules may make IT companies game the system. Indian IT companies such as Infosys , TCS, Mahindra Satyam , Microsoft , Wipro are the major users of H1B visas. Immigation lawyers say some companies might game the system by filing a large number of applications, and thus increase their chances of getting considered by the e-system, by sheer probability ratios.

In an interview to Computerworld, Cleveland based Brian Halliday, an immigration lawyers likened the new registration system to music fans that may buy all the front row tickets to a rock concert.

"How will this electronic system be safeguarded from potential abuses such as 'stuffing' the electronic registration system with huge numbers of speculative H-1B cases to hedge their bets for a number; or other unfair 'gaming' of the H-1B registration process system?," he was quoted as asking in the report.

A final version of the rulem after due deliberations, is expected to be published by January 2012, and the USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.

By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year.

The first 20,000 petitions for these visas filed on behalf of individuals with US master's degrees or higher are exempt from this cap.