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The H-1B Visa Debate

Some say Congress should raise current limits on foreign workers in the United States; others disagree. But proposed changes to the law may satisfy both sides.

Oct/Nov 06
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Enforcement Guidelines
Wages and work conditions seem to be at the center of much of the debate over hiring H-1B workers. Those against raising the cap insist that H-1B visa holders are forced to take lower wages than their American counterparts. Those lobbying for a cap increase dispute that, pointing out that employers hiring H-1Bs are required by law to pay a prevailing wage. "But a prevailing wage is not the same as a market wage," says Hira argues. "Companies can still be within the prevailing wage requirements, while paying below market wages."

Currently, H-1B visa holders who feel they are being treated unfairly can file a claim with the Department of Labor, or a third party can write a letter to the Secretary of Labor outlining the suspected abuse. The secretary then has the discretion to order an investigation. IEEE-USA wants Congress to enact an auditing system for the H-1B holders, which they feel would strengthen the program's integrity and ensure the nonexploitation of foreign workers.

Legislative Relief

Congress is currently looking into the H-1B visa situation. The House of Representatives and Senate have both introduced H-1B legislation: S. 2691/H.R. 5744, better known as the SKIL Bill, which may provide some necessary reforms that many are looking for. This wide-ranging immigration reform bill, now being debated by the Senate Judiciary Committee, would increase the H-1B visa cap from 65,000 to 115,000 per year and eliminate any cap for advanced degree holders. Additionally, the bill also proposes to speed up the green card process for foreign advanced degree holders and increase the number of green cards available, which is now capped at 140,000 per year.

Initially designed as a temporary work visa, the H-1B has now become a stepping stone to a permanent visa, but leaves people stuck in H-1B status for years waiting for their green cards. They can't wait forever. After an H-1B expires, the foreign worker is required to leave the United States for one year before another H-1B petition can be approved by the U.S. Citizenship and Immigration Services (USCIS).

This new legislation may help alleviate many H-1B concerns on both sides. "If the SKIL Bill passes, I think the business immigration community feels they would have many problems resolved," says Malpert. Shotwell agrees. "The SKIL Bill is a great bill," she says. "It provides a lot of the relief we need by providing more H-1B visas and providing more green cards. It streamlines processes and takes people more directly from student to green card status, skipping the H-1B altogether." Even Hira is pleased that the SKIL Bill addresses the current lack of green cards: "If companies were able to give green cards instead of going through the H-1B process, those workers could move from company to company much more easily; that would force companies to pay market wages."

Going Forward
In the end, what everyone wants is an equitable immigration policy that will treat all workers fairly, while allowing companies using H-1B workers to do business competitively. However, if we are not able to achieve this equilibrium, many warn that the future repercussions for the United States could be great.

"If Congress doesn't get this fixed this year, we will run out of visas in the first month or two [of the new fiscal year]," says Shotwell. "If that happens, I think you'll see [American] companies making the decision that they can't depend on getting workers here, and they will look at alternatives to get their work done." She adds that the United States has been a great place to innovate and do research, but cautions that other countries are catching up quickly by putting effort into developing niche industries and attracting skilled workers of their own. She uses Ireland, Scotland, China, and India as examples.

Shotwell believes the first step in turning this trend around is to change our immigration policies to be more welcoming of foreign workers while helping our own companies to remain competitive, and that legislation will be the driving force in creating a sustainable solution. "As our economy has grown and changed, our laws haven't kept up," she says. "We're operating under a system that was established in 1965, and the world is now vastly different."

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