As two H-1B reform bills were introduced in Congress, the U.S. Citizenship and Immigration Services (USCIS) announced that as of late Monday afternoon, April 2, 2007, it had received approximately 150,000 cap-subject H-1B petitions, more than enough to meet the congressionally mandated cap of 65,000 for fiscal year 2008. April 2 was the first day that employers could file petitions to employ foreign workers temporarily in specialty occupations such as engineering under the controversial H-1B program.

USCIS says it will use a random selection process for all cap-subject filings received on April 2 and April 3, rejecting and returning all petitions that are not selected. Regardless, the "H-1B Visa Reform Act of 2004" stipulates that the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned master’s or higher degrees are exempt from any fiscal year cap on available H-1B visas. USCIS has not yet determined how many cap-exempt petitions it received in early April.

Background

According to United States Immigration Support—which is an independent organization and not a U.S. Government agency—the H-1B visa enables professionals in "specialty occupations" to make a valuable contribution to the American economy. The H-1B visa is issued for up to three years but may be extended. This provides a maximum stay of six years. The H1-B visa holder can apply for a Green Card if a company wants to sponsor his/her application.

The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a "specialty occupation" which requires the skills of a professional. "Specialty occupations" includes accounting, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects, and lawyers. The petitions are submitted by employers based on their need for the non-U.S.-resident employee. The applicant may possess a bachelor’s degree or requisite experience to make up for the lack of a master’s degree.

According to Wikipedia, the actual size of the H-1B program is difficult to gauge due to exemptions from the quota limit: 130,497 new H-1B visas were approved in FY 2004 and 116,927 in FY 2005. The limit was reduced to 65,000 in 2006. The demand for H1-B employees is so high that American corporations have filed for H-1B applicants six months in advance of issuing the visa in 2007. USCIS received more than 130,000 applications from U.S. corporations for the 2007-2008 year quota of 65,000.

The H-1B visa category is controversial because advocates say the program (and similar ones operated by other technologically advanced countries) helps the host country maintain its technological, as well as economic superiority, by providing a steady flow of highly skilled professionals who may be in short supply domestically. Supporters also argue that the program provides an incentive for companies not to move their operations abroad.

Those that oppose the program criticize it for displacing substantial numbers of experienced American citizen technical professionals or lowering wages enough to encourage them to abandon volatile careers in targeted fields such as computer technology.

Recent bills

The two H-1B reform bills recently introduced in Congress include one to increase the number of visas granted each year and another to control more tightly how firms fill high-tech jobs with foreign workers.

STRIVE act—According to the American Council of Engineering Companies (ACEC), HR 1645, the "Security Through Regularized Immigration and a Vibrant Economy Act of 2007" (STRIVE act) would increase the number of H-1B visas to 115,000 per year and exempt from the cap individuals who have earned advanced degrees in science, technology, engineering, or math (STEM) from a U.S. university. The act also would create a new student visa category to allow U.S. STEM degree holders who have a job offer to transition directly from a student visa to a green card. The ACEC says this ensures that engineering firms that hire foreign students graduating from U.S. universities will be able to retain those employees. ACEC supports the STRIVE act.

The Durbin-Grassley bill—Meanwhile, Senators Chuck Grassley (R-IA) and Dick Durban (D-IL) introduced "The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007" (Durbin-Grassley bill) to "close loopholes that employers have exploited by requiring them to be more transparent about their hiring," explains Senator Grassley, "and ensure more oversight of these visa programs to reduce fraud and abuse."

Among its provisions, the Durbin-Grassley bill would require that before submitting an H-1B application, an employer must first advertise the job opening for 30 days on a Department of Labor (DOL) website; that H-1B employers may not advertise a job as available only for H-1B visa holders or recruit only H-1B visa holders for a job; that employers could not hire H-1B employees who are then outsourced to other companies; and that companies could not hire H-1B employees if they employ more than 50 people and more than 50 percent of their employees are H-1B visa holders.

In addition, the Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers, and would authorize hiring 200 additional DOL employees to administer, oversee, investigate, and enforce the H-1B program.

Many provisions of the Durbin-Grassley bill align with positions supported by the National Society of Professional Engineers and IEEE-USA.

Recent studies

National Academy of Sciences—In a related study recently published by the National Academy of Sciences, "Where the engineers are," researchers from Duke University’s Pratt School of Engineering say they "found no indication of a shortage of engineers in the United States." (The study was not specific to civil or structural engineers.) Respondents to their survey said that the key advantage of hiring Chinese, entry-level engineers was cost savings; the disadvantages of hiring U.S. engineers were salary demands, limited supply of available people, and lack of industry experience.

Nevertheless, the authors conclude, "It is clear that skilled immigrants bring a lot to the United States: They contribute to the economy, create jobs, and lead innovation. H-1Bs are temporary visas and come with many restrictions. If the nation truly needs workers with special skills, it should make them welcome by providing them with permanent resident status. Temporary workers cannot start businesses, and the nation currently is not giving them the opportunity to integrate into society and help the United States compete globally. We must also make it easier for foreign students to stay after they graduate."

What’s your opinion on this controversial issue? Send your brief response to me at jgoupil@zweigwhite.com.