http://www.washtech.com/news/regulation/9692-1.html


You're Fired, Go Home

Thursday, May 10, 2001
By Anne Usher,
Washington Techway Staff Writer

Under heavy pressure from tech companies starved for talent, Congress last fall boosted the number of highly skilled workers allowed to enter the United States under H1-B visas from 115,000 a year to 195,000.
But in the technology sector downturn many of those workers are losing their jobs and are faced with finding another sponsor or leaving the country.


More than 21,000 H1-B visas were issued last year to companies in Maryland, Virginia and Washington. Some of those companies are now refusing to hire foreign workers they had contracted with for employment - workers that had been approved by the Immigration and Naturalization Service and moved to the United States at their own expense, expecting to be compensated.


Shadid Bose, a Crystal City lawyer with an immigration practice, said one of his clients who experienced such treatment from a large area tech company plans to file a lawsuit against the employer, which Bose declined to identify, in Fairfax County Circuit Court.While interviews with lawyers, immigration associations and technology groups such as the Indian CEO High Tech Council suggest that some highly skilled foreign workers have found jobs at other tech companies, hundreds have sat idle for months. Some have already headed back home.


"Companies filed for H1s during prosperous times," said Bose. "Now, with the slowdown ... most [workers] come in on an H1 and are told when they get here that there's no job for them. They are either put on the bench [between assignments] or, if they don't find another H1-B petition company, are completely out of status."


At the top of the spectrum, workers with advanced degrees and more experience have been less affected by the slowdown. Laura Reiff, an attorney with the Tysons Corner office of Greenberg Traurig, said several clients who had been laid off by UUNet have found better jobs and higher salaries at America Online. Conversely, some are seeing their salaries plunge and even senior international marketing executives have not been spared by recent layoffs.


When MicroStrategy laid off 600 people in April, H1-B visa holders were given no advance warning. John Nahajzer, an employment and immigration counselor with MicroStrategy, said the company provided an outside immigration specialist to speak confidentially with visa holders about their status. He said the company has stopped sending recruiters overseas and has suspended its sponsorship of green cards, but that H1-B employees continue to "form a real critical component of our tech workers."


Rupal Kothari, a Washington immigration lawyer, and several Indian executives in the area said some programmer analysts are being paid $30,000 to $40,000 less than prevailing salaries, about $100,000, even though companies must sign documents stating they are paying H1-B visa holders the same salaries as their American counterparts. The law exists to prevent U.S. workers from being displaced by lower-paid foreign employees.


Kevin Michael Reilly, another Washington immigration lawyer, said if an employer has not paid a foreign tech worker in full, the INS often will not renew their visa when they try to get a new job. He alleged that some employers illegally "try to coerce employees into a position that they are paying cash under the table, not withholding [taxes], and keep them as long as possible like an indentured servant."


So far this year, 77,000 foreign workers have been approved for H1-B visas and another 66,000 applications are pending. According to Lindsey Lowell, director of research for Georgetown University's Institute for the Study of International Migration, about 420,000 H1-B visa workers were in the United States in 2000. He expects that number to hit 500,000 this year.


Confusion over the law has heightened a sense of panic among laid off H1-B visa holders. The visas are only good for up to six years and, according to the INS, workers are given 10 days at the end of that period to settle their affairs and leave the country. However, INS spokeswoman Eileen Schmidt said no such grace period exists should they lose their job before the visa expires.


Schmidt said a person who loses their job can try to find a new employer, but would have to prove that "extraordinary circumstances beyond their control" caused them to lose their status. She said there is no set time frame for finding a new job but notes that if there is a gap between employment, the person is out of status and therefore taking a chance of having later visa petitions denied.


The INS checks pay stubs to see if a person began their new job immediately after leaving their first one. Under the new law, slated to take effect this summer, a provision will allow people to transfer to a new job without waiting for INS approval.


Lawyers say people can renew their status by going to a consulate abroad, such as in Canada and Mexico. While the INS issued a non-binding notice in March stating a person's status could be renewed in the United States, Reiff said she has told her clients to disregard this until the actual law changes.


She and other attorneys say the INS doesn't have the manpower to enforce the statute, and generally won't crack down if a worker finds another H1-B job and renews their status outside the United States within 90 days. However, they said the law is applied unevenly and there is no standard period that a person can remain in the country between jobs.


"It's highly discretionary, highly erratic. It depends who gets the case. They may be in a good mood that day," Reiff said, noting that the Departments of State and Labor have different interpretations of the law.


Kothari notes that the INS takes a long time to process status applications - often at least three months - because it is "the last priority on their list."


Some lawyers are trying to help their clients between assignments by attempting to switch their status to a student or tourist visa. Kothari said such measures are just a temporary fix and are not condoned by INS.


"It's not as easy as the [INS] thinks it is to uproot their lives," she said. "They are in shock. The only protective measure I can do is offer a Band-Aid."




© 2001 The Washington Post Company