June 29, 2009
As some technology companies carry out layoffs, furloughs and other pay cuts, they step into a web of potentially costly legal issues linked to foreign workers, immigration attorneys say.
Businesses that use the H-1B visa program, which allows U.S. companies to employ non-immigrant foreign workers for up to six years in specialized positions, face restrictions when rolling out cost-cutting measures.
Federal regulations require employers to pay H-1B workers the maximum of what they pay other workers for the same position or the established average wage for that position in a particular geographic area.
"The companies are very limited," said Tarik Sultan, an immigration-law attorney in Tucson. "They can't reduce the pay of an employee . . . because they're tied into the wage requirements."
For an employer to subject H-1B workers to a furlough or pay cut, Sultan said, it would have to file new paperwork with the U.S. Department of Labor redefining the workers' position, which can cost thousands of dollars depending on the number of employees involved.
Phoenix-based computer-chip maker ON Semiconductor Corp. encountered the issue when it required employees to take four weeks of unpaid time off in the first half of the year.
"We are not able to ask our H-1B visa holders to do the same without jeopardizing their visas," said Colleen McKeown, senior vice president of human resources and communications.Instead of opting to file new paperwork to redefine their positions, ON Semiconductor asked H-1B workers to "burn vacation time," McKeown said. ON currently employs 41 workers with H-1B visas, including 24 in Arizona, where it has about 1,000 workers, McKeown said.
The H-1B program is run by U.S. Citizenship and Immigration Services, a division of Homeland Security. The program caps the number of H-1B visas to 65,000 per fiscal year for workers with a bachelor's degree. An additional 20,000 visas are allotted for workers with a master's degree or higher from a U.S. education institution.
The caps exempt some workers, including those employed by higher-education institutions, organizations tied to such institutions, and non-profit and government research groups.
Including exempt categories, USCIS approved 276,252 of the 288,764 H-1B petitions filed in fiscal 2008, according to the most recent data available.
A company must show that it tried to hire a U.S. worker in order to sponsor an H-1B petition for a foreign worker.
In prior years, the cap for H-1B petitions was reached within days of the filing process opening April 1 because companies were still growing.
The 65,000 cap for the upcoming fiscal year beginning Oct. 1 has yet to be met, the first time it has not been reached within a few days since fiscal 2007.
There still are about 21,000 H-1B visas available under the 65,000 cap for fiscal 2010, according to USCIS spokeswoman Sharon Rummery.
Businesses, especially those in the tech industry, say the program is needed to fill technical positions for which they have little success hiring American workers because of skill requirements.
"It's hard to be in the technology industry without some participation in the H-1B program," said Lauren Carr, vice president of human resources for Microchip Technology Inc.
The Chandler-based semiconductor manufacturer received approval for 11 H-1B visa petitions in fiscal 2008, according to the most recent Homeland Security figures.
Like ON Semiconductor, Microchip has taken cost-cutting measures to weather the global slowdown in semiconductor sales. The company, which employs about 1,500 workers in Arizona and about 5,000 worldwide, has required all workers in its fabrication plants to take furloughs.
The move has not affected H-1B workers, though, because those employees mostly are in engineering, Carr said.
http://www.azcentral.com/arizonarepublic/business/articles/2009/06/29/20090629biz-visas0630.htmlWell...How fucked up is that?
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