THE H-1B PROGRAM:
AMERICA’S HOME COURT ADVANTAGE IN GLOBAL COMPETITION
THE ISSUE: The H-1B program is
a prompt, lawful way for U.S. employers to hire foreign-born
professionals on a temporary basis. This program allows U.S.
business to recruit and hire the best-qualified candidates from
around the world, and compete on a level playing field with
foreign companies in such key industries as high-tech,
manufacturing, pharmaceuticals, biotechnology, and education.
BACKGROUND: Who are H-1Bs?
H-1Bs are temporary foreign professionals hired by U.S.
employers. They can only be hired for “specialty
occupations,” which are defined under the law as jobs that
require a professional who has the equivalent of a bachelor’s
degree in their field of specialty. Examples are doctors,
engineers, professors, accountants, researchers, medical
personnel and computer professionals.
What does the Employer Need to Do?
A U.S. employer using this program must guarantee that 1) the
foreign professional will be paid at or above the rate paid for a
similar position at the employer’s own offices, or at those
of their local competitors; 2) the foreign professional will not
adversely affect the working conditions of U.S. colleagues; 3)
U.S. colleagues will be given notice of the professional’s
presence among them; and 4) there is no strike or lockout at the
worksite. The employer also must demonstrate that the
position requires a professional in a specialty occupation and
that the intended employee has the required qualifications.
The American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA) increased the number of H-1B
visas (no more than 115,000 new admissions each year for FY99 and
2000, 107,500 in 2001, and 65,000 after that). ACWIA also added
new requirements for employers who use a higher percentage of
H-1B workers (including that companies first recruit in the
United States, and not lay off American workers before using the
H-1B program). ACWIA stiffens the punishments for companies that
violate the law. The new punishments include fines of up to
$35,000, a three-year bar from participating in visa programs,
and repaying salaries of any under-paid foreign professionals.
ACWIA further requires employers to pay a fee of $500 per visa to
fund education and training programs for U.S. workers.
Why is the H-1B program essential?
U.S. employers use the H-1B program to hire foreign professionals
with highly needed skills. Employers typically hire H-1B
professionals for three reasons:
No employer would go through the extra
burdens, costs and delays of hiring a foreign professional worker
unless they could not find the skills they need among U.S.
workers. If American companies are prevented from hiring
essential people to fill critical positions, an increasing number
CURRENT STATUS: ACWIA increased
the number of temporary visas through Fiscal Year 2001, while
making significant changes to the program to enhance domestic
workforce protections. However, the increases mandated in ACWIA
were insufficient; the H-1B visa cap was reached well before the
end of FY1999. It is expected that the cap will be reached
even earlier in FY2000. AILA supports the following
bills introduced this year to increase the H-1B limit:
S. 2045: Senators Orrin Hatch,
Spencer Abraham, Phil Gramm, Dianne Feinstein, Bob Graham, and
others, introduced the American Competitiveness in the 21st
Century Act on February 9, 2000. This bill would increase
the H-1B cap to 195,000 for FY2000, 2001 and 2002. The bill
also would exempt from the cap H-1B nonimmigrants employed by
higher educational institutions and research institutions, and
foreign graduates of U.S. masters and doctoral degree programs
sponsored by U.S. employers within six months of their
graduation. Because of support from Senators Hatch, Abraham
and Gramm, this bill appears to be the vehicle through which the
Senate will address this issue. AILA strongly supports this bill.
H.R. 3983: A bi-partisan
group of Representatives, led by David Dreier (R-CA), Chair of
the House Rules Committee, and Zoe Lofgren (D-CA) introduced the
“Helping to Improve Technology Education and Achievement”
or “HI-TECH Act” on March 15, 2000. The bill has strong
bi-partisan support of such key members as Representatives Tom
Davis (R-VA), the chairman of the Republican Congressional
Campaign Committee, and Representative Patrick Kennedy (D-RI),
chairman of the Democratic Congressional Campaign Committee. The
bill would increase the limit on H-1B visas to 200,000 for
FY2001, 2002 and 2003, and would “set aside” 10,000 of
the 200,000 visas for employees of higher educational
institutions, and government and non-profit research
institutions, and 60,000 visas for individuals who hold masters
or higher degrees (or their equivalent). The bill also would deal
with problems resulting from the per-country limits in business
immigration by allowing unused visas to spill over to
oversubscribed countries. Another provision in the bill allows
applying “carryover visas” from FY1999 that were
counted against the FY2000 cap back to FY1999, thereby having
fewer carryovers for this year. Finally, the bill would increase
the fee for initial petitions from $500 to $1,000. AILA
strongly supports this bill, while concerned about the impact of
an increased fee on non-profits, small businesses and state and
local governments that are increasingly using the H-1B program.
Because of the strong bi-partisan support for this bill, and the
support of Democratic and Republican party leadership, it is
likely that this bill will be this is session's House H-1B
vehicle.
AILA and the business community strongly
oppose H.R. 3814, the “Technology Worker Temporary
Relief Act” introduced by Representative Lamar Smith (R-TX),
Chair of the House Immigration Subcommittee on March 2, 2000.
The bill purports to grant an additional 45,000 visas only for
Fiscal Year 2000, to be available only after the current cap is
reached, and only after the Department of Labor issues final
regulation implementing ACWIA. Not only would this
bill hold the additional visas hostage to the Department of
Labor, which has expressed opposition to the program in the past,
but 45,000 visas would not even cover the expected carryover of
visas from last fiscal year to this one. The bill also
would require employers applying for these visas to document: (1)
they have increased the total number of U.S. workers employed in
the last year; (2) their total payroll to U.S. workers has
increased in the last year; and (3) their median wage has
increased in the last year. In addition, the bill would
permanently change the H-1B category, requiring sponsoring
employers to have at least $5,000,000 in gross assets, requiring
H-1B nonimmigrants to be in full-time employment, and eliminating
the availability of work experience equivalence to a required
bachelor’s degree. These provisions would render the
H-1B program unusable for small businesses and startups, the very
employers driving the engine of our economy today.
AILA’s POSITION: AILA
believes that the H-1B cap is a cap on U.S. economic expansion.
If U.S. employers cannot quickly and efficiently hire the workers
they need to develop new products, create ground-breaking
research, implement new projects, and expand their operations,
they will be at a competitive disadvantage with foreign countries
with less restrictive immigration policies. The European Union
and Asia are becoming America’s largest competitors in
global markets, partly because their policies allow companies to
hire foreign professionals with exceptional talents and
abilities. All U.S. industrial sectors face increasing
competition from abroad and increasing job shortages. Further
restrictions on the H-1B program will only encourage America’s
competitors. Now more than ever America needs the ability
to hire highly skilled employees. AILA strongly supports S.
2045 and H.R. 3983, and strongly opposes H.R. 3418.