December 26, 2008
Dear President-Elect Obama,
We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season’s greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.
One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.
There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.
Critics of a cap increase argue that the H-1B program is merely a means for petitioning companies to obtain cheap foreign labor. However, there are also built-in procedural checks to protect against this (i.e., the LCA and its attestation that wages will equal or exceed the prevailing wage for the position). The H-1B employer is required to pay the higher of the prevailing wage and the wage paid to similarly situated professional in the company. Again, if some employers are finding a way out of paying such wages to H-1B employees, then there must be more administrative oversight or a reform of policy to guarantee that employers are in actuality paying at least the prevailing wage. It makes no sense to limit or decrease the number of visas available thus hindering our ability to be competitive worldwide in cutting-edge technologies in the hopes that to do so will make this problem better.
Fraud in H-1B Petitions
Opponents of the H-1B program and of the cap increase have been pointing to the recent H-1B Benefit Fraud & Compliance Assessment, published by USCIS in September of 2008 to support their position. Although the report definitely identifies procedural areas in which USCIS must improve, it does not make a good argument against the need for more H-1Bs. The report looks at a sample of 246 H-1B cases from a total of 96,827 approved, denied, or pending applications. 13.4% of those 246 cases had either some type of fraud or a technical violation. Please see our prior article discussing this report in more details: What is the future of the H-1B Program ?
The frauds detected by the audit included: the business did not exist, degrees and experience letters were fraudulent, forged signatures, and the beneficiary was performing duties significantly different from those described in the LCA. Some of the more prevalent technical violations included: the beneficiary was paying the application fees, the prevailing wage was not being paid, the beneficiary was working in a geographical location not covered by the LCA filed in their case, and the beneficiary was “benched,” or place in a non-productive status when work was not available.
From the list of frauds and technical violations, only some could be used to argue that the H-1B program is used to displace workers or to obtain cheap labor. And it is unclear how many of these abuses were even found in the cases that were actually approved by USCIS, since the sample included cases which were denied. The report states that among the approved cases, 19% were found to contain fraud or technical violations. However, the report does not break this number down more to detail where the more serious frauds and violations were found. The percentages of those instances may be very small. In any case, this report cannot support a conclusion that the H-1B program is a method to accomplish employers’ hidden agendas of displacing U.S. workers and avoiding higher wages. The proper method of minimizing abuses is to reformulate policy and procedures, not to cut off the supply for our economy’s demand for skilled workers.
While the country is not seeing its best days, current immigration policies are definitely not helping. The H-1B visa permits foreign workers to come temporarily to the U.S. to fill newly created jobs when U.S. workers are unavailable. Demand for such workers can be used in such a way to help the ailing economy. But to ignore this demand is hurtful to the economy because it forces companies to employ workers outside of the U.S. and causes workers with great talent or skill to search for jobs in other countries.
A solution to this problem can be found in a policy that increases the H-1B cap, at least temporarily, to alleviate demand. However, we should never lose sight of the need to improve U.S. science and math education, as these subjects are the basis for the most popular professions for which H-1B visas are sought.