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Tech companies win small victory in H-1B push

New rule says select foreigners enrolled in training programs won't be forced to return home as soon, which may give them a better shot at obtaining visas to stay in the U.S.

The U.S. Department of Homeland Security has given high-tech companies a piece of good news: foreign graduates of American universities won't necessarily be forced to go home before companies have a chance to hire them on temporary work visas.

The new rule announced late Friday will allow recent graduates with science, technology, engineering, or mathematics degrees to stay in the country for 29 months, instead of the previous 12 months, if they're participating in an off-campus on-the-job training program related to their field of study.

The "stopgap measure" appears to be directly related to persistent complaints by high-tech companies like Microsoft, Google, and Oracle that the annual cap of H-1B temporary visas will be exhausted before they can even lodge applications for this year's crop of graduates. To be eligible for an H-1B, which can be renewed for up to six years, one must hold at least a bachelor's degree in one's area of specialty, but most graduates won't have diploma in hand until May or June, which visa-hungry companies fear is too late.

The extension represents a small victory for the companies in the grand scheme of things, but it could give companies a better chance of being able to secure visas before a foreigner's student status expires--especially if Congress opts to raise the H-1B quota, as some members have already proposed.

U.S. Citizenship and Immigration Services began accepting H-1B petitions on April 1 but has not yet announced how many it has received. If the number of petitions filed during the first five days exceeds the baseline allotment of 65,000 visas, plus 20,000 more for students with advanced degrees from U.S. universities, then USCIS plans to select its applications through a random "lottery" that's, not surprisingly, despised by companies vying for the visas.

The "interim" rule applies only to students who are currently enrolled in the 12-month Optional Practical Training (OPT) program, as it's known, with a company that uses Homeland Security's voluntary E-Verify system to check its employees' eligibility to work in the United States.

Microsoft chief lobbyist Jack Krumholtz applauded Homeland Security's action on Monday, saying it "allows U.S. companies to recruit, hire, and retain the best graduating science, technology, engineering and math students trained at the top U.S. universities," he said in a statement.

"In the past, these students were often unable to remain in the United States for more than a year after completing their degrees because they could not obtain the necessary work visa in spite of being offered gainful employment in highly innovative companies due to the extreme shortage of H-1B visas," he added.

Robert Hoffman, Oracle's chief lobbyist, said the move was important but represented a "band-aid on a much larger crisis." Now Congress needs to boost the number of H-1B visas and make it easier for "the best and brightest" temporary workers to obtain permanent green cards, he said in a statement. (Hoffman is also co-chairman of Compete America, a group composed mostly of Silicon Valley companies that lobbies for more liberal immigration policies.)

American programmers who oppose expanding the H-1B system on the grounds that it displaces qualified Americans and depresses their wages were none too pleased with the new step.

"Homeland Security Secretary Michael Chertoff says flooding in more foreign workers 'is a way to bolster the U.S. economy,'" Kim Berry, who heads a vocal group called Programmers Guild, said in an e-mail message about the new rules. "Well, slavery and relaxation (of) child labor laws might 'bolster' the economy too."

Homeland Security said it plans to take comments on the new rule for 60 days, which suggests it could be modified at some point.