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The H-1B Visa Dilemma, Part 1: A Broken System

By Andrew K. Burger
May 14, 2008 4:00 AM PT

The disconnect has never been more pronounced between the supply and demand of H-1B visas, the visa program that allows guest workers in the United States.

The H-1B Visa Dilemma, Part 1: A Broken System

The technology industry has been at the forefront of the H-1B visa debate, lobbying for the government to allow more foreign workers into the U.S. each year.

The number of H-1B visa applications for 2009 probably reached the legislated cap of 65,000 on the first day of this year's week-long filing period, which ended April 7, as did applications for advanced degree exemptions, which are capped at 20,000. More than 160,000 H-1B applications were submitted in total, in what has become an annual filing frenzy.

The issue is a particularly pointed one for U.S. IT industry leaders, who continue to lobby for a much larger quota or an entirely new system. Failing in such efforts so far, industry leaders are outsourcing highly skilled jobs overseas and moving operations offshore instead.

Ensuring America's Competitiveness

The debate surrounding H-1B visas strikes at the heart of strongly held American values and principles -- creating and keeping jobs here at home, maintaining national economic competitiveness and the traditional perception of the U.S. as a land of opportunity and haven for the oppressed.

Proponents of increasing the H-1B quota argue that doing so is of vital interest if the U.S. intends to maintain its position as a global leader in a range of cutting edge fields and core disciplines.

"Google believes that the current H-1B cap should be raised to reflect the growth rate of our technology-driven economy. If the United States is to maintain its status as the world's high-tech leader, it must continue to attract, hire and retain the best and brightest, many of whom are already in the U.S. studying at one of our world-class universities," maintains Keith Wolfe, Google's global mobility manager.

"The U.S. scientific, engineering and tech communities cannot hope to maintain their present position of international leadership if they are unable to hire and retain highly educated foreign talent. We also cannot hope to grow our economy and create more jobs if we are ceding leadership in innovation to other nations," he added.

The issue also invokes one of the U.S.'s most deeply felt values -- that the nation serves as a beacon of economic opportunity and personal freedom for people the world over.

"Since the beginning of our republic, immigration has powered the U.S. economy. To refuse entry to technical professionals would only cause more research and development to move overseas -- or simply north or south of the border. Vancouver and maybe even the Mexican Riviera offer attractive alternatives to U.S. research facilities," Anupam Chander, professor of law at the University of California, Davis, currently a visiting professor at Yale Law School, told TechNewsWorld.

Job Creator or Killer?

The U.S. IT industry would not be the same, to say the least, if it were not for the contributions of new immigrants.

"As a successful, innovative American company, Google is creating jobs in the U.S. every day. And we are just one of the more recent success stories for immigrants in Silicon Valley. eBay, Yahoo, Sun Microsystems and many others -- all of which have added untold value to the American economy -- were all founded by immigrants who were welcomed by America," pointed out Google's Wolfe.

"H-1B visa workers have played an integral part in the booming IT industry in the U.S. These H-1B workers have created and supported innovations, products and services that have helped all Americans. On average, H-1B professionals will have a two- to three-person, non-H-1B U.S citizen support staff created for the high level position that the H-1B holder assumes," added David Silver, principal attorney at Darren Silver & Associates, a law firm that specializes in assisting small, medium-sized and Fortune 500 companies with H-1B and L1 visa application processes.

Countering these claims, the H-1B visa program is criticized by some foreign-born, as well as U.S. IT industry employees, economists and labor groups. The latter argue that the program pushes older, experienced and more costly U.S. employees out the door, deprives U.S. citizens of high-skilled jobs and lowers salaries; the former claim that H-1B visa holders receive lower than average salaries and little or no benefits yet are subject to Social Security taxes that they cannot take with them when they return to their home countries.

For example, the following was posted as a comment last month to an article about H-1B visas on the Money section of CNN's Web site:

"There are currently over 1.5 MILLION UNDEREMPLOYED U.S. IT workers, American citizens with IT/CompSci degrees who are working in jobs outside the IT/CompSci industry as store clerks, grocery store stockers, headhunters, etc., making far less pay than they would if an American company would hire them at prevailing wages for that industry. They could be retrained but U.S. companies won't do that when they can get H-1Bs so much easier, who work for far less and who won't leave their company for about 5 years on average in the hopes of getting U.S. citizenship."

The H-1B Debate in DC

They are not falling on deaf ears in Washington either. Senators Dick Grubin (D-Ill.) and Charles Grassley (R-Iowa) are working at revising the legislation with the aim of ensuring that it isn't abused.

The two senators on April 1, the first day of this year's H-1B filing period, sent a letter to the top 25 recipients of approved H-1B visa petitions in 2007 -- some 20,000 of the 65,000 issued -- seeking detailed information on how each firm uses the visa program.

"By the end of the day today, all of the H-1B visas for the year will likely be spoken for," Durbin said. "The H-1B program can't be allowed to become a job killer in America. We need to ensure that firms are not misusing these visas, causing American workers to be unfairly deprived of good high-skill jobs here at home."

Durbin and Grassley have been doggedly following up on concerns that loopholes in and abuse of the H-1B and L-1 visa programs are costing qualified Americans jobs. Last year, they introduced the H-1B and L-1 Visa Fraud and Abuse Prevention Act, which would require H-1B applicants to make a good faith effort to hire American workers first and would give the Department of Labor greater oversight authority in investigating possible fraud and abuse.

"I have no doubt that we'll hear arguments all day as to why the cap on H-1B visas should be raised, but nobody should be fooled. The bottom line is that there are highly skilled American workers being left behind, searching for jobs that are being filled by H-1B visa holders," Grassley said. "It's time to close the loopholes that have allowed this to happen and enact real reform."

The H-1B Visa Dilemma, Part 2: What to Do?

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