HORITSU.COM :: The US Immigration Laws

US Immigration Question:

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Answer:

What are H-1Bs? "H-1B workers," as they are commonly known, are temporary nonimmigrant workers at a professional level or above. By law, a US employer seeking to hire a foreign worker in this category must guarantee certain things, including:

the worker will be paid at or above the rate paid for a similar position at the employer's own offices or at those of their local competitors;
the foreign worker will nat "adversely affect" the working conditions of his US colleagues;
his US colleagues will be given notice of his presence among them; and
there is no strike or lockout at the worksite.

The employer also must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications. There is a detailed enforcement system in place to identify and punish those who do not comply with these requirements; the punishments include repaying salaries to the foreign workers if found that they have been underpaid, as well as debarment from US Immigration programs for a year. The category is limited by statute to no more than 65,000 new admissions each year, and each individual worker is limited to a stay of no more than six years.

What is the problem? A booming economy, coupled with recent changes in the law, have led to a dramatically increased demand for H-1B temporary nonimmigrant workers. Prior to the passage of the Immigration Act of 1990, there was no cap on the number of H-1B workers allowed to enter the country. The 65,000 limit included in the 1990 law, the only category of nonimmigrants so capped, was determined without regard to either the actual need for nonimmigrant workers or economic demand. Because of the increased number of jobs in our country, many of which rely on new or innovative technologies, the cap was reached for the first time in FY 1997, even before the end of that fiscal year. Current projections strongly suggest that the cap will continue to be reached, but earlier and earlier in each future fiscal year.

Why the cap exacerbates the problem: US employers who use the H-1B category to bring in temporary workers seek particular sets of skills not found in sufficient quantity in this country. As our economy becomes increasingly global, bringing in H-1B workers becomes even more essential to America's continued economic growth. Importantly, if American companies are prevented from hiring essential people to fill critical positions, an increasing number of jobs dependent upon these slots also will go unfilled each year, resulting in American jobs being lost, and American projects losing out to competition from abroad.

Allegations are Unfounded: Critics of the H-1B program allege that these temporary nonimmigrant workers displace US workers. However, logic and our low unemployment numbers tell a far different story. No employer will go through the extra burdens and delays inherent in hiring a foreign worker unless they cannot find among American workers the skills they need. In many instances, US workers simply are
unavailable. In some industry sectors (notably high-tech), US companies are desperately seeking to hire employees with the appropriate skills. Industry estimates that as many as 190,000 information technology jobs are currently unfilled. Companies have put into place significant education and training programs to develop needed skills in the American workforce. In fact, the information technology industry itself has spent cumulatively over $210 billion for training, and companies donate over $4 billion per year to US schools at the K-12, and college and university levels. However, these efforts simply are insufficient to fill in a timely manner the demand that exists in the current marketplace. Thus there continues to be a need for H-1B temporary nonimmigrant workers.

The solution = Eliminate the cap: The H-1B cap of 65,000 was chosen at random during heated debate on US Immigration policy that resulted in the 1990 US Immigration Act. This figure was chosen arbitrarily, without regard to actual usage or need. Basic economics tells us that market forces will keep the number of needed H-1B workers at a level consistent with US hiring needs. Keeping safeguards in place for wages and working conditions, with proper enforcement, will ensure that H-1B workers will help generate more, rather than fewer, jobs for Americans.

Congress already has started to look at the H-1B issue. If this issue is important to your business I urge you to contact your Members of Congress and tell them.