Open-source developers face H1-B visa puzzle

John Weatherby, Executive Director of the Open Source Software Institute (OSSI) is less critical of the program and hasn't seen many problems with it.

"I'm sure that the companies who rely on either outsourcing or importing large numbers of foreign developers have very legitimate reasons and sound arguments as to why they would like to see an increase in the number of H1-B visas, but we have not run into that problem, I believe, for a couple of basic reasons," Weatherby says.

"We work with lots of software development companies who are either exclusively open source shops, or employ open source as part of their solutions and service offering. We're also engaged in project management for selected open source projects on both a national and global scale. In neither case have we seen a problem with the H1-B visa situation. "

"We also do work with the U.S. Department of Defense, and again the H1-B visa situation has not been an issue since most DoD work does not allow overseas or foreign-national development," he adds. "So they depend on the U.S.'s homegrown talent."

Mark D. Koestler, a partner in the New York City based business immigration law practice of Kramer, Levin, Naftalis & Frankel, explains that the H-1B category is the visa status devoted to professional or "specialty occupation" positions, such as accountants, lawyers, graphic designers, bankers, advertising executives and others. Engineering, math and computer science compose some of the highest demand categories. The H-1B is an employer-sponsored status, meaning you cannot apply if you do not have a prospective employer who is willing to file a petition.

According to Koestler, there are the principal requirements that must be satisfied to qualify for the H-1B category. One is that the proposed position must require at least a U.S. bachelor's degree, or the equivalent, in a specific area. In addition, the individual must have that degree, or the equivalent; and the individual's compensation must be the "required wage" -- the higher of the prevailing wage for the position in the area of intended employment or the actual wage paid to others holding the position with the employer. Generally, H-1B status is valid for up to six years with a few exceptions for longer service.

Critics contend that the program enables foreign workers in the U.S. to take jobs from American workers. Not surprisingly, executives who use the program disagree. "This is simply not the case," says Bob Meltzer, CEO of VISANOW, a Chicago, Illinois based firm who streamlines visa applications for U.S. employers and foreign workers. "The fact that more than twice as many applications were filed then visas allotted on the first day of H-1B filing means that companies cannot fill needed positions."

Meltzer contends that for a technology firm that is seeking to fill its ranks of software developers, programmers and other information technology positions, the H1-B visa program is one that is competitive, yet a rich source for filling much needed technology positions.

Elizabeth Charnock is CEO Cataphora, a firm specializing in sophisticated software for investigative analytics used by corporate legal staffs and law firms in document-intense litigation work involving white-collar crime, securities, and antitrust matters.

"It's difficult to find people" Charnock says. Her firm has had trouble finding highly qualified IT workers willing to work for her firm. However, there are many foreign workers hungry for IT jobs. Charnock says that when her firm posts jobs on Craig's List, they receive many inquiries from workers in India.

Charnock points out that many job petitions were from outsourcing firms, based in places like India. These firms simply recruit and place the workers and profit from the placement.

She cites figures that Infosys, an outsourcing firm that places workers from India into U.S.-based firms, submitted 5000 petitions for the visas, out of a total of 65,000 being granted. She compares this to Cisco Systems' 800 petitions, which was ranked 13th in the number of petitions filed. Staffing firms that specialize in placing foreign workers into U.S. technology firms are dominating the efforts to attain workers on the H1-B visa.

San Diego-based staffing firm TalentFuse is one such firm embracing the H-1B visa program. "Our customer's main criteria are qualified IT professionals that can get the job done so country of origin does not matter from a business standpoint," says Brian Margarita, President of TalentFuse. TalentFuse was recently acquired by SQL Star -- a global staffing firm based in Delhi, India.

"From our standpoint - -TalentFuse is its own H1-B company -- we don't have as many visa issues because it's an inter-company transfer when our parent company SQL Star bring students to the U.S. who have gone to school for IT certification in its facilities located in India, Singapore and Australia. These qualified IT personal become SQL Star employees. Many are then transferred to the U.S. to complete projects in the TalentFuse development centers."

The demand for workers is significant and the supply does not seem to be getting much better. Technology firms are working on their own solutions to find talent.

"Next year it can get worse. It's so much disruption," says Charnock. She cites the recent announcement by Microsoft, who just disclosed plans to open up a software development center near Vancouver, British Columbia in Canada -- not far from their Redmond, Wash., headquarters. This comes on the heels of a failure by Congress to raise the cap.

"Unfortunately Congress has been unable to successfully shepherd any of the proposed H-1B program improvements through the legislative process yet" says says Leigh Ganchan, an attorney with the law firm of Epstein Becker and Green's Labor and Employment and Health Care and Life Sciences Practices in the firm's Houston office. "One Senate proposal would have increased the annual numerical limitation from 65,000 to a more realistic 115,000 per fiscal year."

Ganchan feels that anticipating future periods of economic growth is important and that any such legislative proposal needs a market-based cap escalator to take effect in the fiscal year following years in which U.S. employers experience an increased need for H-1B professionals. Such action by federal legislators may need a voice from employers.

"It is vital that employers be vocal with Congress about the economic need for a more realistic H-1B program," says Elizabeth Stern, a business immigration attorney and partner in the Washington, D.C., office of Baker and McKenzie.

Charnock, like Stern, feels that a program with a distinct pool of foreign workers who have a masters or doctorate degree from a foreign institution would be a welcomed improvement in the program. At present, there is a separate pool for advanced degree holders, but the degree must be from a U.S. institution of higher learning.

"Development of visa pools for foreign-based master's holders and high-salaried foreign hires are among the options that need to be explored," Stern says.

Whether a prospective hire has a degree or not, they are just hard to find. The anonymous open source developer we spoke about earlier explained that his job was posted for two years before he filled it on an H1-B visa after jumping through all of the hoops in the application process. "It really put me off, working here," he explains. "I had considered working in Canada."

His view of the whole H1-B process as it is?

"I don't think it benefits anybody."