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Stop the April Fools' Day rush - uncap H-1B visas

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Stop the April Fools' Day rush - uncap H-1B visas

February 23, 2007

It's that time of year again. Just as birds fly south for the winter, U.S. employers are ramping up for the ritual rush to file H-1B immigration petitions by April 1.

Why the rush, and why should you care?

An H-1B is a visa that enables employers to temporarily hire qualified foreign professionals to fill specialty jobs. These are professional positions that require at least a bachelor's degree (or equivalent) in a specific field. H-1B holders include teachers, researchers, scientists, professional sports coaches, senior managers, engineers, accounting executives, professors, health care managers, financial analysts, computer engineers and analysts.

Employers hire foreign nationals in H-1B status not because they are cheap labor—in fact, a 2003 Federal Reserve Bank of Atlanta study showed that the presence of H-1B hires increased, rather than decreased, wages in the IT sector—but because these professionals have unique education, skills and experience. Employers need these particular employees and are willing to pay high salaries—usually well above what the government determines is the prevailing wage—benefits, as well as the significant additional H-1B compliance and immigration costs, which can add tens of thousands of dollars in real and administrative costs.
If employers could find U.S. workers with the same education and skills and did not have to pay the extra immigration costs, they would. But the U.S. supply does not meet the demand. For example, employers who require a master's or doctorate in engineering, math or science frequently have no choice but to hire foreign nationals because foreign students represent half of all U.S. graduates in these fields. There simply are not enough U.S. workers with the skills and education these employers require.

Congress has imposed a rigid cap of 65,000 initial H-1B visas per fiscal year on "highly skilled" workers with bachelor's degrees or their equivalent; an additional 20,000 H-1Bs are available for those who have a U.S. master's degree or higher. At the beginning of the Immigration Service's fiscal year—Oct.1—new H-1B slots become available. The first date an employer may file for an H-1B visa is six months in advance. That's April 1.

The numbers for fiscal 2007 (Oct.1, 2006-Sept. 30, 2007) were allocated by end of May of 2006, leaving a period of 16 months during which new H-1Bs were not available. As a result, many positions were left open or filled with less qualified candidates. With pent up demand of over a year, the limited numbers could be used up in the first day—April 1 — necessitating a lottery distribution of the H-1B visas.

This cap is arbitrary and senseless. Preventing employers willing to do everything the H-1B program requires from legally hiring those candidates who are best for their business hurts U.S. competitiveness. Management experts have concluded that hiring and retaining the best people is the single most critical factor for successful businesses. These misguided protectionist policies tie the hands of employers who have identified the right people. Companies are forced to wait a year and a half, make do with less than the best candidates or no qualified candidates, and risk losing these foreign nationals to a non-U.S. competitor. If the United States, facing competition in the global economy, is unable to get the right people on board, then we all lose.

In an open letter to President Bush and members of Congress June 19, 2006, more than 500 economists from around the world agreed that immigration has been a net gain for American citizens. "Immigrants do not take American jobs," they wrote. " The American economy can create as many jobs as there are workers willing to work, so long as labor markets remain free, flexible and open to workers on an equal basis."

Those who would further restrict immigration, including that of temporary H-1B professionals, exaggerate the potential adverse impact on the U.S. labor force, and point to the very few documented incidents of H-1B visa fraud as a reason to shut down the entire system. Even in 2002, when 195,000 H-1B visas were available and at the height of H-1B usage following Silicon Valley's economic boom, these workers comprised less than one-sixth of one percent of all workers in the United States.

We should eliminate the H-1B cap and allow the number of H-1Bs admitted each year to follow the market. From 2001 to 2002, when the number of available H-1Bs was much higher than the current 65,000, supply exceeded demand. The number of H-1B professionals decreased in industries that suffered declining employment (such as computer systems design), while increasing in industries that continued to add jobs (such as colleges and universities), demonstrating market forces at work. The added cost of hiring H-1B employees as well as the obligation to pay a certain salary ensures that U.S. companies hire them only when necessary, and not as a means to displace U.S. workers.

During the Silicon Valley high-tech boom of the 1990s, foreign nationals, many of whom were H-1B professionals, were critical in maintaining U.S. preeminence in a wide range of scientific and technical fields when talent was in particularly short supply.

A recent University of California Berkeley study concluded that immigrants have become a driving force in the creation of new businesses and intellectual property in the U.S., generating sales of nearly $50 billion and creating tens of thousands of new jobs. In our increasingly global economy, we must aggressively court foreign nationals to contribute their brains and innovation to the success of U.S. employers, rather than in other countries where they will compete against us.

As the National Science Board points out in a 2003 report: "Progress in science and engineering relies on knowledge and skills found throughout an international community...The U.S. needs the perspectives and talents of both the native-born and foreign-born for the best possible S&E workforce."

We should throw out the welcome mat to these sought-after knowledge workers, not slam the H-1B door in their face.

I urge lawmakers to grapple with and enact real immigration reform. This reform should eliminate the H-1B cap so that U.S. employers are free to recruit and retain the right employees. American employers should be able to look forward to a new year in 2008 free from the pre-April 1 H-1B rush.

Kirsten Schlenger is a founding partner of Weaver, Schlenger & Mazel, a firm which limits its practice to Immigration and Nationality Act law. She is certified as a Specialist in Immigration and Nationality Act Law by the California Board of Legal Specialization of the State Bar of California.

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