Another H-1B battle coming?
Another H-1B battle coming?
Date: Thursday, January 20, 2005 8:43 PM
JOB DESTRUCTION NEWSLETTER
by Rob Sanchez
January 20, 2005 No. 1182
Harris Miller made it very clear that the recent increase of 20,000
H-1B visas in the yearly cap was not enough, and he vowed that he would
lobby to raise the limit in 2005. I reported last year that Harris
Miller would spearhead a lobbying effort in early 2005 to either raise
the yearly cap on H-1B visas or to eliminate the cap altogether. It
appears that his lobbying effort is now underway.
"We're still going to run into cap problems," said
Harris Miller, president of the Information Technology
Association of America trade group. "I've never believed
the cap was necessary or appropriate."
The first order of business for Harris Miller will be to defeat or
water down Bill Pascrell's bill. Harris Miller fears that employers
would be required to attest that they looked for American workers
before they hired an H-1B. He even opposes these requirements on "H-1B
dependent" companies that comprise less than 1% of the employers that
hire H-1Bs. The bad news for Miller is that Pascrell's bill might
require 100% of U.S. employers to attest that they made an effort to
find American workers, and there are other potential reforms that he
will like even less!
At least one member of Congress is gearing up for another
revision to the H-1B program. Rep. Bill Pascrell of New Jersey
indicated in a letter this month that he plans to propose a
bill that would force all employers applying for H-1B visas
to search for qualified American workers first.
ITAA's Miller said his group would "strongly oppose" requirements
that non H-1B-dependent employers have to attest that they will
not displace a U.S. worker or that they have first sought to hire
an American worker.
Norm Matloff explained that H-1B dependency is a meaningless
requirement "as it applies to only 50 out of 50,000 H-1B employers."
To read in greater detail what he has to say on this matter, go to this
page and scroll all the way to the bottom:
http://heather.cs.ucdavis.edu/Archive/H1BChanges2004.txt
There are some interesting comments at the end of the article. Go
online and participate!
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http://news.zdnet.com/2100-9589-5543609-2.html
Another H-1B battle coming?
CNET News.com January 20, 2005,
By Ed Frauenheim
As the ink on a new law expanding the H-1B visa program begins to dry,
another battle is already brewing about how many new foreign skilled
workers, including computer professionals, should be allowed to work in
the United States on the visas--and under what terms.
Critics of the H-1B program oppose raising the annual cap from its
current level of 65,000. Last month, President Bush approved visa
program changes, including an exemption to the cap for up to 20,000
foreigners earning graduate degrees at U.S. schools.
This new exemption comes on top of existing exemptions for institutions
of higher education, nonprofit research organizations and governmental
research organizations. For fiscal years 2000 to 2003, the number of
new visas exempt from the annual cap averaged nearly 28,000.
(Information about fiscal year 2004 was not yet available.)
What's new:
Just weeks after the H-1B visa program was expanded, a battle is
brewing over how many new foreign skilled workers should be allowed to
work in the United Sates on the visas--and under what terms.
Bottom line:
Backers of the guest worker visas say the annual cap of 65,000 is too
low, having been reached the first day of this fiscal year. But critics
oppose a higher cap as harmful to U.S. workers and call for more worker
safeguards.
More stories on this topic
Cap exemptions could translate into more than 40,000 additional foreign
workers this year, said Vin O'Neill, legislative representative for the
U.S. wing of the Institute of Electrical and Electronics Engineers
professional group.
The cap is intended to provide a safeguard, but it's losing its
meaning, O'Neill argues. "The greater the supply, the more leverage the
employer has to drive down wages."
Critics also complain that the revamped visa program fails in other
ways to adequately protect workers. But H-1B defenders point to new
measures designed to benefit the American work force. Backers also say
exceptions to the cap are needed and that if anything, the cap should
be raised or eliminated. They note that this year's visa ceiling was
reached on the very first day of the federal government's fiscal year,
Oct. 1.
"We're still going to run into cap problems," said Harris Miller,
president of the Information Technology Association of America trade
group. "I've never believed the cap was necessary or appropriate."
A ticket to controversy
H-1B visas allow skilled foreign workers to come into the country for
up to six years. Thirty-nine percent of visa petitions approved in 2003
were for workers in computer-related occupations, with nearly 37
percent of all approvals that year for workers born in India.
The annual cap, which primarily applies to applications for initial
employment, has fluctuated over the years. Congress raised the cap from
65,000 to 115,000 in 2000. It then raised it to 195,000 for 2001
through 2003. When the cap fell back to 65,000 in 2004, employers hit
the visa limit less than halfway through the fiscal year.
H-1B visas have long been a flashpoint of controversy in the tech
industry. Critics have blasted the H-1B program as undermining U.S.
workers, being ripe for abuse and fueling the shift of skilled work
overseas. Industry leaders have said the visas serve instead as a brake
on offshoring, defending them as a means to fill shortages and give
U.S. companies access to international talent as they compete globally.
Recent changes to the H-1B program and to the also-controversial L-1
visa program were part of a catch-all bill signed into law by President
Bush in December.
Bobby Chung, an immigration attorney based in Southern California, said
it was quite possible that all 20,000 of the new visas for foreigners
with graduate degrees from U.S. schools will be taken--and likely that
the number of other exempt new visas will be similar to the 28,000
average of recent years. "I don't see that number changing all that
much," he said.
Defending the exemptions
The new cap exclusion of up to 20,000 graduate degree holders is a
smart move to keep smart talent on U.S. soil, ITAA's Miller argues.
"Granting this exemption puts America first by giving U.S. employers
access to this talent and giving U.S. taxpayers a bigger return on the
tax dollars they invest every year in U.S. institutions of higher
learning," Miller said in a statement after Congress passed the omnibus
bill. "Foreign students make up 50 percent or more of attendance in
many advanced-math, science and engineering programs. Forcing foreign
students to return home after earning their advanced degrees sends that
public investment packing."
Immigration attorney Chung said the visa exception for universities is
important as well. "If they didn't have these workers, it would hamper
their ability to do research," he said.
In Chung's view, the current cap is too low, though he would not raise
it all the way to the previous peak of 195,000. "If it's reached on the
first day of the fiscal year, it's definitely not enough," he said.
IEEE-USA, however, argues that reaching the cap on Oct. 1 is a sign
that employers have come to treat the visas as a standard business
practice rather than a last resort. "Too many companies are going to
H-1Bs first," said Russell Harrison, a legislative representative of
IEEE-USA. "If they can't get a hold of an H-1B, then they'll go to an
American worker."
A lower cap last year seems to have helped U.S. techies, according to
IEEE-USA. The average number of unemployed workers in nine high-tech
categories--including computer programmers, database administrators and
computer hardware engineers--fell from 210,000 in 2003 to 146,000 in
2004, according to Labor Department data.
There are signs that the tech labor market is tightening as the economy
improves, with at least one analyst predicting a shortage of technology
professionals in the United States in the near future. Not all
independent analysts share this view, however.
Devil in the details?
Controversy also continues to swirl around other aspects of the revised
visa program. Visa advocates say there are a number of new H-1B rules
that work in U.S. workers' favor. One is a new $500 fee earmarked for
fraud prevention and detection. Another is an application fee of $1,500
for companies of more than 25 people, with funds used for education and
training programs for U.S. workers.
One rule revision, though, is not as strong as it may have initially
appeared.
Soon after Congress passed the measure in November, Sen. Saxby
Chambliss, R-Ga., a major force behind the new rules, stated that under
the legislation, "companies must attest that the H-1B worker will not
displace a U.S. worker."
Although this statement suggests that all companies are bound by the
rule, details of the law reveal that the requirement applies only to a
subset of employers. Those affected are ones that hire a significant
percentage of H-1B visas--so-called H-1B-dependent employers--as well
as employers found to have committed a "willful failure or
misrepresentation" in the previous five years. Regulations specific to
these types of employers existed in the past but had expired in 2003.
Chambliss' office did not respond to requests for comment.
Norm Matloff, a computer science professor and longtime critic of the
H-1B program, argued in a Web posting that reinstating the
H-1B-dependent category "is of basically no consequence, as it applies
to only 50 out of 50,000 H-1B employers."
At least one member of Congress is gearing up for another revision to
the H-1B program. Rep. Bill Pascrell of New Jersey indicated in a
letter this month that he plans to propose a bill that would force all
employers applying for H-1B visas to search for qualified American
workers first.
ITAA's Miller said his group would "strongly oppose" requirements that
non H-1B-dependent employers have to attest that they will not displace
a U.S. worker or that they have first sought to hire an American
worker. Miller argued that the program's requirement that employers pay
the prevailing wage is a strong safeguard for U.S. workers and that
additional requirements would slow processing times.
Miller also said H-1B visas can be used to bring over foreign workers
who can help a company sell a product in a foreign market--a situation
where it would not make sense to recruit a U.S. worker.
In keeping with the heated tone that has long characterized debate over
the visas, Pascrell said the H-1B stakes are high. "We, in the
Congress, have a moral obligation to prevent our skilled work force
from being dangerously eroded," Pascrell wrote. "If we do not act soon,
we are in real danger of outsourcing the middle class of our country
out of existence."
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