In addition, the temporary visa program includes no requirement that companies in the U.S. try to hire American employees before they turn to foreign workers. To obtain a permanent visa, companies must conduct and provide to the government a labor market test, in which they demonstrate that they sought to hire American workers first. But the H-1B temporary visa program mandates no such market test. Instead, companies are required only to pay the prevailing wages and benefits for a certain job in a certain market.

The government, including USCIS, says that the provision means that most companies are going to hire Americans, because there's no financial advantage to choosing a non-U.S. worker. But Hira says Indian companies could choose to hire workers from India for training purposes, rather than financial gain. Government officials acknowledge that companies that want to give preference to workers from other countries could theoretically do so. "There's nothing built into the law to stop that," says Hernandez.

Many U.S. companies are enthusiastic supporters of the H-1B visa program. Tech companies may be the most active participants, but the visas are also used by companies from General Electric and Boeing to Lehman Brothers and Caterpillar. Companies have been lobbying the government to increase the cap on the number of H-1B visas from the current 65,000. (Because there are exceptions for certain kinds of jobs, the number of visas issued regularly exceeds that level.)

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Squeeze on temporary visas
Top technology companies would like to see the cap almost twice as high as it is now. The Information Technology Industry Council, whose backers include Apple, Dell, eBay, and Intel, last year asked that the cap be raised to 115,000. The group says that bringing foreign workers with very specialized skills to the U.S.—both temporarily and permanently—is critical to increase innovation and competitiveness. "Visas are a key component of the innovation agenda," says Kara Calvert, director of government relations for the council. "It's really important to grow the economy here rather than overseas."

Yet the ITIC has become concerned in recent months that the temporary visa program is not being used for its original purpose. The council's members may not be able to get the workers they want from abroad because the numerous applications from non-U.S. companies mean fewer H-1B visas are available for U.S. companies. "We hit the cap earlier and earlier," Calvert says. "We think it's important to ensure that the visas are used for the purpose for which they were intended."

One reason for the squeeze may be that Indian outsourcers have boosted their visa applications just as the cap has been lowered. Wipro applied for 3,100 visas in 2001, when the H-1B cap was 195,000 workers, according to Hira's calculations. Wipro applied for six times that many H-1B visas last year, when the cap was a third of the previous total.

No easy answers
Wipro's Badiga says Indian companies are helping to create good jobs in the U.S. and fostering innovation. The jobs that Wipro offers in the U.S. to both Indian and U.S. workers, he says, are more skilled positions for high-level software design or important customer relations. What he calls "rote programming jobs" are done from India. He says that the H-1B visa program allows Wipro workers to get valuable experience in the States and be more effective at serving customers in the U.S. "The key question is whether we can create the best value chain to help our customers be as competitive as possible," says Badiga.

Even critics say that there are no easy solutions for revising the temporary worker program. Restricting the ability of Indian outsourcing companies to use H-1Bs, for example, may not stop them from being used for more effective outsourcing. Accenture, an active participant in the program and one of the top U. S. outsourcing firms, could hypothetically use the visas in exactly the same way that Wipro and Infosys do. A spokeswoman for Accenture did not return calls seeking comment.

U.S. tech companies may push for revisions to the H-1B program. They could ask that Congress limit the number of visas that go to non-U.S. companies or that the identities of the recipients be disclosed fully and speedily. President Bush has said that he wants to work with the Democratic Congress on new immigration and visa policies, although it's unclear what shape those reforms might take. "If companies are abusing those visas, that hurts U.S. companies," says the ITIC's Calvert. "We want to be at the table when the discussions [on H-1Bs] occur."

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