Visa Program Ripe For Abuse

Visa program ripe for abuse, critics charge

Changes proposed as Congress weighs raising limits on foreign workers.

By Eunice Moscoso
Sunday, May 13, 2007

WASHINGTON The vast majority of companies that hire foreign workers through the H-1B visa program do not have to prove, or even declare, that they have searched for American workers first.

Critics of the program, which allows companies to hire well-educated foreign citizens for a defined period, up to six years, say the lack of such rules is a problem and should be changed, especially as Congress considers increasing the number of H-1B visas.

“At the very least, there should be an attempt to find an American,” said Russell Harrison, a lobbyist for IEEE-USA, which represents engineers and computer programmers. “It was an oversight of Congress when they failed to include it.”

The program is crucial for high-tech companies, which say there's a shortage of qualified U.S. workers in certain fields. But critics say provisions designed to prevent abuse are too lax.

Only companies with more than 50 employees where at least 15 percent are H-1B workers are required to attest that they tried to find U.S. workers.

Those businesses, deemed “H-1B dependent,” constitute 10 percent or less of total H-1B users, according to industry experts.

The vast majority of businesses that use the program are not H-1B dependent. Those companies are required only to post a notice on a company Web site, newsletter or job board that they intend to hire a foreign worker, Labor Department officials said.

According to a statement from Labor Secretary Elaine Chao posted on the department's Web site, an H-1B worker “may be hired even when a qualified U.S. worker wants the job.” This applies only to companies that are not H-1B dependent.

High-tech companies say they always search for American workers but cannot find them.

“The regulations are not the issue. The issue for the companies is that they have a shortage of qualified workers,” said John Palafoutas, chief lobbyist for the American Electronic Association, a technology trade association.

Human resources directors are doing all they can to find workers, he added.

Chris Bentley, a spokesman for the U.S. Citizenship and Immigration Services, said the visa program has several rules that protect American workers, including a requirement that employers pay foreign workers the prevailing wage for the job so they won't abuse the program to import cheaper labor.

Ted Ruthizer, chair of the business immigration group at Kramer Levin Naftalis & Frankel in New York, said that requiring all companies to search for Americans before applying for H-1B visas would “severely restrict” the program and keep companies from hiring the best people.

For example, he said a company that wants to hire a foreign citizen who is the valedictorian at the Massachusetts Institute of Technology to be a research scientist could have to settle for an American with lesser qualifications.

Ron Hira, a professor of public policy at the Rochester Institute of Technology, said that such examples are “false advertising” because such elite students account for only about 3 percent to 5 percent of H-1B visa holders.

“We're not talking about a very large share. It's not representative of what goes on with the H-1B program” he said.

Sens. Richard Durbin, D-Ill. and Charles Grassley, R-Iowa, have introduced legislation intended to protect U.S. workers from being displaced by H-1B employees.

The legislation would require employers seeking to hire an H-1B visa holder to pledge that they have made a good-faith effort to hire U.S. workers first and that the H-1B visa holder will not displace an American.

The number of H-1B visas allowed by law has fluctuated in recent years in response to the U.S. economy and the highs and lows of the technology industry. It is now set by Congress at 65,000. An additional 20,000 foreign citizens with advanced degrees from U.S. universities are allowed to work in this country.

The technology industry contends that the number is inadequate.

Earlier this year, the government received more than 133,000 applications in two days, far exceeding the year's quota.

Microsoft Corp. Chairman Bill Gates told Congress in March that the United States should welcome an “infinite” number of high-skilled foreign workers for engineering, computer programming and other jobs that would otherwise go unfilled.

Several bills pending in Congress would increase the H-1B cap.

Sen. John Cornyn, R-Texas, introduced a bill earlier this year that would raise it to 115,000, with the possibility of further increases depending on market needs.

In a statement at the time, Cornyn said the United States is losing its competitive edge “because our immigration policies prohibit us from retaining some of the best and brightest students currently graduating from U.S. colleges and universities, especially those with advanced degrees in science and technology.”

Another bill introduced by Reps. Luis Gutierrez, D-Ill., and Jeff Flake, R-Ariz. would increase the cap to 115,000 a year and add more exemptions to push it higher. But the bill includes controversial provisions to create a large guest worker program and allow a path to citizenship for illegal immigrants and therefore faces many challenges.