VC Visas: Foreign Workers After the Fall –

WASHINGTON – As an H-1B visa holder from India, Shailesh Gala contends that few people are frustrated about getting laid off these days. That’s because many foreign workers holding H-1B visas can find new jobs rather quickly, because the marketplace needs their skills.

Indeed, the fallout of the dotcoms does not seem to have hurt foreign workers on H-1B visas with venture-backed companies, according to industry insiders like Mark Heesen, president of the National Venture Capital Association.

“There is still a critical need for these people,” said Heesen, whose NVCA was part of a broad coalition of industry associations that supported the American Competitiveness in the 21st Century Act. The bill, which former President Clinton signed into law last October, increased until 2003 the number of H-1B visas annually issued to skilled foreign workers to 195,000 from 115,000.

The extent to which the current downturn is causing problems for H-1B visa holders involved in the venture industry or working with venture-backed companies is difficult to assess completely.

To be sure, there have been reports of the general economic downturn hurting foreign technology workers who came to the U.S. on H-1B visas. One visa holder involved with the Immigrant Support Network, said the group has been contacted by a number of laid-off visa holders. However, the venture industry’s demand for foreign, highly-skilled workers remains high and there are few H-1B visa holders who worked for venture-backed companies that have to return home because of unemployment, said a number of venture industry insiders.

For Gala, who is president of the Immigrant Support Network and works as a software engineer in New Jersey, the question of status is a much more important issue. For H-1B visa holders, losing their jobs means losing their status, since the visa holder’s employer sponsors the visa.

Technically, a loss of status means the out-ofwork visa holder has, essentially, become illegal and needs to leave the country. However, if the out-of-work visa holder can find new employment and prove to an INS adjudicator that extraordinary circumstances led to their job change the INS can grant a new visa to the worker, said Eyleen Schmidt, an INS spokesperson. The large problem with this is the INS has never said how much time an out-of-work visa holder has to either find a new job, or wind down their affairs and head home, Gala noted. The INS is not actively looking for out-of-work visa holders to deport, Schmidt added.

“The problem is the law is unclear,” says Lynn Schotwell, legal counsel and director of government relations at the American Council on International Personnel (ACIP). “Employers need to know what the policy is to be able to give employees advice, in the event of a layoff, plus a new hiring employer needs to know a potential employee’s status,” she added. The ACIP has written a letter to the INS asking the agency to clear up this issue and suggesting that out-of-work visa holders be given 90 days to either find a new job or set their affairs in order for returning home. The INS is in the process of reviewing the issue and should have a policy in place by the end of the summer, Schmidt said. At the moment, the INS does not know how much time it will give to out-of-work visa holders to find new jobs, she added.

Fortunately for these workers in the venture industry, finding new jobs has not been a big problem. “These individuals are so advanced in terms of their technical knowledge, you are going to pull out the stops to get them because the economy is going to turn around and you are going to want these guys. Really it would be an advantage at that point,” noted Heesen. Through mid-May the INS had issued 117,000 H-1B visas and already approved 40,000 pending applications for 2001, Schmidt said. “We get incoming applications all year, so if we don’t reach the 195,000 limit, it looks like we will get near it,” she added.

For those H-1B visa holders in the venture industry who have lost their jobs through layoffs or company closings, they should be able to find new positions because of their skill, said Paul Brownell, a vice president at the NVCA. “Especially in places like Silicon Valley and New York, there is still plenty of demand for the skills these individuals possess. A lot of people probably just crossed the parking lot and found a new job,” he said.

Carl Stjernfeldt, a senior associate at Battery Ventures and a former H-1B visa holder, agrees with Brownell. “If they are qualified, these people will be able to get another job,” he said.