"The fourth or fifth employee at Cygnus Solutions was an H1-B visa case," Tiemann says. "He was a talented programmer from the U.K. who wanted to leave the U.K. and live in Silicon Valley. The trouble was, even though he had twice developed software programs that generated millions of GBP of revenue, he never went to college, and so it was quite a challenge to go through the process. Nevertheless, with several professors at Stanford University testifying that his work was the equal of a PhD, we hired him. He was very productive for us, and delighted living in the U.S."

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.

In defense of American workers

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.