DHS Announces New Rule Prohibiting Multiple H-1B Applications

Companies seeking visas for highly skilled immigrants will be restricted to one application for each job candidate, according to a new federal regulation.

U.S. Citizenship and Immigration Services announced Wednesday, March 19, that it would prohibit employers from filing multiple H-1B visa applications for the same employee.

The immigration service, which is part of the Department of Homeland Security, will deny multiple petitions for the same candidate and not refund filing fees. It will allow a parent company and its subsidiary to make an application for the same worker for different positions.

The rule will go into effect as soon as it is published in the Federal Register—perhaps this week.

The visas, which allow immigrants with the equivalent of a U.S. bachelor’s degree to work in the country, are coveted by technology companies. 

Last year, the 65,000 H-1B cap was exceeded on April 2, the first day that applications were accepted for fiscal year 2008. This year, the cap is likely to be reached on or shortly after the April 1 deadline.

If that happens, the immigration service will allocate H-1B visas through a lottery system, just as it did last year. The first 20,000 H-1B workers who have a master’s degree from a U.S. university are exempt from the H-1B cap.

Each year, technology firms chafe at the hiring limits placed on highly skilled foreign nationals. They argue that there are not enough U.S. workers to fill open positions. They also say that the United States should retain foreign science and engineering students who matriculate at U.S. colleges and universities.

Critics of the visas say that they rob U.S. citizens of jobs and allow companies to depress high-tech wages by hiring foreign workers.

In congressional testimony last week, Microsoft chairman Bill Gates warned that if H-1B caps are not increased, the U.S. will lose its technology edge.

“American companies simply will not have the talent they need to innovate and compete,” he said.

Companies are becoming discouraged by the H-1B logjam, according to Bob Meltzer, CEO of Visanow, a firm that provides automated immigration services. Meltzer said the number of Visanow clients has risen by about 40 percent since last year, but the number of H-1B applications they’re filing has gone up only 15 percent.

Companies are put off when they lose out in the H-B process.

“It’s a big cost in terms of money, resources and energy,” Meltzer said. “A couple [companies] are saying, ‘Heck no, we’re not going to do that. We lost a lot of money last year.’ ”

Gates’ testimony spurred action on Capitol Hill to change H-1B policy. Rep. Gabrielle Giffords, D-Arizona, introduced a bill that would raise the cap to 130,000 for fiscal year 2009 and later to 180,000. It also would eliminate the 20,000 cap on H-1B visas for immigrants with master’s degrees.

Reps. Patrick Kennedy, D-Rhode Island, and Michael McCaul, R-Texas, have introduced a measure that would make it easier for foreign nationals who have earned a doctorate from a U.S. university to gain U.S. residency.

Congressional skeptics of H-1B visas also have offered legislation. A bill written by Sens. Charles Grassley, R-Iowa, and Richard Durbin, D-Illinois, would require all companies applying for H-1B visas to certify that they have tried to hire U.S. workers first.

Their bill would mandate that employers pay a prevailing wage and prohibit them from outsourcing H-1B employees to other companies. It also would strengthen Department of Labor enforcement.

Grassley and Durbin have released an analysis that shows the three biggest users of H-1B visas in fiscal year 2007 were Indian companies—Tata Technologies, Wipro and Satyam Computer Services.

Immigration legislation may not be viable on Capitol Hill. The atmosphere for the issue is volatile and brittle following the collapse of a broad Senate bill last year that would have strengthened border and work-site enforcement while creating a path toward residency for the approximately 12 million undocumented workers in the country.