H-1B processing has settled back down since September 11 upheaval, but behind-the-scenes changes and upcoming legislation debates could still affect foreign nationals working in the US
By Meredith W. Salisbury
Earlier this year, people applying for an H-1B visa were often waiting more than three months because of security issues and backlog at the heavily criticized US Immigration and Naturalization Services. The H-1B, a nonimmigrant visa widely used to bring highly educated foreign nationals to work in the US, is critical to the genomics industry — especially its bioinformatics component. At bigger companies such as Sequenom, some 15 to 20 percent of the employee population are foreign nationals, the vast majority on H-1Bs, according to human resources vice president Kimberly Ellstrom. That means any delays at INS can put a serious crimp in a company’s plans.
But now, the process appears to be going back to normal. Andrej Bugrim, director of US operations at systems biology company GeneGo, says he applied for his H-1B last summer and waited about two months. A fellow GeneGo employee who’s also from Russia applied for his visa more recently and “it was approved in about the same time,” Bugrim says.
That doesn’t mean life is back to status quo at INS. About a month and a half ago, the agency’s four major service centers — in California, Nebraska, Texas, and Vermont — shut down for a solid week for a system overhaul to accommodate a new mandatory background check. “There’s a new process where names have to be checked through [a] central database,” says immigration specialist Cynthia Lange, a partner at Fragomen, Del Rey, Bernsen & Loewy. That database checks a name against several other agencies’ records to find any possible red flags.
It’s uncertain what the effect of the new system will be. The general sense, of course, is that the extra step will slow things down — but there’s no feeling for how much. One concern in particular is whether this will impede the expedited H-1B, a program started early this year through which a company can pay an extra $1,000 (above the standard $1,100 cost of the visa) for premium service, which means a guaranteed response in 15 days.
Another holdup may hit the genomics industry harder than others. Last year, the State Department released a Technology Alert List, outlining all the occupations or technologies considered particularly sensitive. Though the TAL rolled out before September, “it really wasn’t of much interest,” says Richard Pettler, also with FDBL. “Following 9/11, this issue’s gotten a lot more play.”
Basically, H-1B applicants can be held up for 30 days or more if they’re going to engage in any of the sensitive activities — including chemical and biotechnology engineering or certain kinds of high-speed computing, Pettler says. Coming to the States to compare sequences of anthrax strains? That’ll be a problem “big time,” Pettler says. “In some cases, the person may be denied the visa.”
Applicants and employers “do need to be more cautious and understanding of the heightened sense of security,” says Dawn Lurie, an immigration specialist with Greenberg Traurig. “The INS is under very heavy scrutiny.”
On the Horizon
There have already been stirrings on Capitol Hill about legislation on the H-1B cap. Currently, the law allows for 195,000 people to come in each year on the visa — that’s up from 65,000 in 1998 and 115,000 in 2000. But each time the cap is raised, it’s with the proviso that it’s a temporary measure and that it will fall back down to the original 65,000. The latest legislation extends the 195,000 cap through 2003.
That means that the government has to start thinking now about plans to extend the higher cap. “People are starting to line up on either side,” says FDBL’s Lange. The real debates, she believes, will start late this year.
Lurie adds that the cap could severely affect the pharmaceutical areas, including biotech and bioinformatics. “A lot of industries will need [H-1Bs] and will continue to need them,” she says.
Biz Issues to Consider
Are there different rules for startups?
There are no rules against starting up your own company (and then applying for your own H-1B under that company), but it does give the INS pause. Though there are people who successfully sponsor themselves, “you lose credibility,” FDBL’s Lange says, because there’s clear self-interest. “Sometimes we’ve run into issues when people were even partial shareholders,” Greenberg’s Lurie says. Even at a company with just a few people, another problem is whether the startup has reliable sources of funding to be able to pay a salary.
An alternative for people looking to start their own companies is the E visa, says Lange. Under that program, any person in a country with whom the US has a special commerce treaty may come to the US to start a business or make a substantial investment. “Substantial” is considered as a proportion rather than a particular sum — so if a company costs $30,000 to start, and someone puts in most or all of that, that person may be able to get an E visa, for which there is no cap and is good for five years to start. “It’s one of the best nonimmigrant visas,” Lange says.
What if my company is acquired or I change jobs?
Most of the time, M&A doesn’t interrupt the H-1B, according to the INS. However, it could cause problems if the employee will wind up doing a significantly different job in the new company.
One of the reasons the H-1B is so popular is because it works extremely well for people changing companies so long as the job itself remains substantively the same. For someone already on an H-1B, the new employer files another application for the visa, and the employee can start working the day of application instead of waiting for approval. Switching employers does not, however, extend the life of the original H-1B, which has a maximum life of six years.
What employees should plan to provide:
H-1B applicants are undergoing more scrutiny now. Before, giving full middle names wasn’t required — not so anymore. “I had to provide my diploma [and] qualifications and CV,” GeneGo’s Bugrim recalls. (Bugrim, who was in the country on a student visa, says the process is usually easier for people who are here already.)
Esther Morrison, who works with H-1B applications at US Visa Associates, says she’s noticed more requests for evidence lately. In particular, “they’re requesting that people go to university professors [for an evaluation],” she says. “If it’s a straight evaluation for a bachelor’s degree, then you’re fine.” But claiming more esoteric education or specializations could lead to difficulties finding someone to carry out an evaluation.
There’s a lot of burden on the company seeking to bring in an employee on an H-1B. For one thing, it has to prove that it did its best to recruit an American worker and failed. Then, it has to convince the INS that it’s a legitimate company, it can pay the employee, and the job actually exists. “They’re usually looking for proof that you are a real company, that you have funding, that this isn’t somebody setting up shop to bring all their friends from another country over,” says Sequenom’s Ellstrom. “If you’re publicly traded, they’re going to want annual reports. If you’re not, they’re going to want to know where your funding is coming from.”
That doesn’t mean it’s a tremendous hurdle, though. Ellstrom has applied for some 20 visas already this year and rarely has problems.