H-1Bs now open to the less-educated?

The H-1B guest worker visa program continues to be a lightning rod for criticism, with a business group blasting a federal agency for the way it is putting into effect changes signed into law last year.

On Tuesday, U.S. Citizenship and Immigration Services announced that it is working on regulations related to the new law. It also indicated that additional visas for this year, made possible by a fresh exemption to the visa program, will be available to a range of workers--not just to those with advanced degrees.

In December, President Bush signed a law that, among other things, exempted from the H-1B annual cap of 65,000 up to 20,000 foreigners who earn master's degrees or higher in the United States.

The cap for 2005 was reached on the very first day of the government's fiscal year, Oct. 1. H-1B visas, which allow skilled foreigners to work in the United States for up to six years, generally are given to individuals holding a bachelor's degree or higher.

"The available petitions for (fiscal year) 2005 will be applied to all qualified H-1B nonimmigrant aliens and will not be limited to those individuals holding a master's degree or higher degree from a U.S. institution of higher learning," USCIS said in a statement.

Compete America, a coalition that includes businesses, universities and trade groups, criticized USCIS for undercutting congressional aims and shifting course from earlier statements.

"The agency's decision to reverse its position on the allocation of the additional visas is troubling at two levels," Lynn Shotwell, executive director of the American Council on International Personnel, said in a statement released by Compete America on Wednesday. "First, it seems to ignore congressional intent. Second, it shows blatant disregard for the business-planning process. Companies across the country have made staffing decisions over the past four months based on the agency's original statements."

Chris Bentley, a USCIS spokesman, stressed that the agency has not yet put the finishing touches on its new rules. "It's too soon to be able to comment," he said.

A statement from USCIS in December about the new law strongly suggested that additional visas for 2005 would be reserved solely for those holding advanced degrees. "The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of

higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year," the agency said in a statement. "For FY 2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria."

One interpretation of this statement, though, might be to treat the first 20,000 visas already granted to people with advanced degrees in 2005 as those making up the exemption. In that case, another 20,000 visas for this year would be available under the cap to people with a broader range of educational backgrounds.

An official at the U.S. Department of Homeland Security--the parent agency to USCIS--said this line of reasoning was a possibility for the final regulations. The official spoke on condition of anonymity.

H-1B visas have long been a flashpoint of controversy in the tech industry. Thirty-nine percent of visa petitions approved in 2003 were for workers in computer-related occupations, with nearly 37 percent of all approvals that year for workers born in India.

Critics have blasted the H-1B program as undermining U.S. wages, being ripe for abuse and fueling the shift of skilled work overseas. Industry leaders have said the visas serve instead as a brake on offshoring. They have also rejected the claim that H-1Bs amount to a cheap-labor program, defending the visas as a means to fill shortages and give U.S. companies access to international talent as they compete globally.

The annual cap, which primarily applies to applications for initial employment, has fluctuated over the years. It fell from 195,000 in 2003 to 65,000 in 2004, when employers hit the visa limit less than halfway through the fiscal year.

Despite recent changes in the law, battle lines are being drawn between those who want to increase or eliminate the cap, and those who oppose more H-1B visas.

Compete America also criticized USCIS for not yet accepting applications for additional visas. The agency has advised employers to wait until it publishes a rule concerning the new law and related issues.

Although USCIS said provisions of the new H-1B law went into effect Tuesday, spokesman Bentley said the agency isn't guilty of a delay. The agency did not have to start accepting applications Tuesday, he said.