Open-source developers face H1-B visa puzzle

Visa process is forbidding obstacle to SMB firms, who say it 'plays into the hands of large corporations'

According to a July 2007 survey by Gartner Group of 225 U.S.-based organizations, 66 percent projected some level of increase in IT staff looking 12 months forward. This is up from 61 percent in 2006. The H1-B visa program, which allows U.S. firms to petition for workers from abroad, has been one avenue of meeting this demand. But the number of positions needing to be filled is seemingly way greater than the allowable quota imposed by Congress.

Speak to the open source community about the topic and you are likely to hear a mixed bag of comments about the H1-B program.

One comment is that the H-1B program is too prescribed. The quotas seem whimsical and aren't tied to actual demand for that year. Plus, they give too much weight to objective data without looking at who that person is and what they can offer. Many very capable open source developers don't have a college degree and the program does not easily accommodate them. In addition, the process is costly for an employer to petition for the visa, and also for the candidate to hire attorneys and consultants to insure that their application is proper.

H-1B visa petitions by U.S. firms began six months before the start of the Government's 2007 fiscal year in October of 2006. This date fell on a Sunday. By noon on the following Tuesday, the U.S. Citizenship and Immigration Services had received more than 130,000 H1-B petitions for workers. That is more than two petitions for every available visa. Yes, you heard that right -- in one day the quota was exceeded.

In the U.S. Government's 2003 fiscal year, 195,000 H1-B visas were allowed, but the current number, 65,000, is closer to that imposed just before the dot-com boom at the turn of the new millennium.

One open source developer who commented on the program is now working in the United States on an H1-B visa. He wished to remain anonymous as he is gainfully employed as an open source developer and is working on his green card application.

"There's a great concern over undocumented immigrants and we tend to get bundled together with that issue," he says.

His application was an inch and a half thick. He hired a specialist to insure that all the details were included in the application. He considers himself lucky in being accepted and being able to work for a notable firm in the open source community.

Obstacle to SMBs?

But others are highly critical of the process as it is an obstacle to many open source firms who are often small and midsize businesses.

"The H-1B visas play right into the hands of large corporations," says Russ Nelson, vice president of an open source firm and member of the Open Source Software Institute. "First, because they make it more expensive to hire the worker you want because of the H-1B overhead. Second, they tie the worker to the corporation that created the job, so the worker is not free to change jobs. Since most open source firms are small to medium companies, the H-1B program generally hurts them. I don't understand what problem is being solved by restricting immigration. If somebody wants to come to our country and work hard, I see no reason to stop them."

Mike Tiemann was one of the founding partners of Cygnus Support, later Cygnus Solutions, an open source firm that made the Software 500 list in 1996. The firm received numerous awards and accolades, and was acquired by Red Hat in 1999.

"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.

She cites figures that Infosys, an outsourcing firm that places workers from India into U.S.-based firms, submitted 5,000 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 search for talent

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."

This story, "Open-source developers face H1-B visa puzzle" was originally published by LinuxWorld-(US) .

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