Most of you probably know what the H-1B visa program is but if you're like me you haven't kept up with it. After all, if you have a job then it doesn't affect you directly and if you're out there looking you probably can blame the sluggish economy for the difficulty finding a fit for your skills. Additionally, it seems to affect mostly software engineers, probably because there is a supply of them available from overseas. But, I get ahead of myself. Let me go back and fill in the details of what H-1B is and why you should know what's new.
H-1B visas allow U.S. companies, including federal contractors and universities, to hire skilled foreign workers on a temporary basis to supply workers where they cannot find qualified Americans. However, some would argue that the program isn't filling empty jobs but replacing qualified Americans.
In October 2003, the H-1B visa cap will automatically return to 65,000 annually from its present level of 195,000 per annum. The high-tech industry is already lobbying for more H-1B visas. The Information Technology Association of America (ITAA), for example, says there will be a worker shortage if the current 195,000 visa cap isn't maintained. This probably isn't the case since the high-tech job market is in the doldrums and it looks like it could be some time before a recovery happens. The numbers that I've seen indicate that unemployment is about 8 percent in Silicon Valley while the national unemployment rate is 6 percent. So, one could rationally ask why we need to hire from outside the US. The obvious answer is cheap labor, although H-1B states that the pay rate should be comparable to the existing rate.
An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), which is up to three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.
To hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation.
Those in favor of H-1B say that the data show that the rate at which industry is creating a demand for scientific and technical workers is rising faster than the supply of American students entering these fields. But all that changed with the dotcom bust and the current slow down. Last year, it was estimated that telecommunications and computer makers slashed nearly 400,000 workers - and that's down from the previous year's 500,000 layoffs.
But US companies may continue to have to rely on foreign workers as the number of people entering the profession shows signs of decline. Demand for engineering courses is down in the US, according to the National Science Foundation statistics. In 2000, there were just over 59,000 engineering graduates compared to 63,000 students in 1996.
H-1B or L-1
The H-1B is not the only visa used by foreigners to get jobs in the US. The L-1 visa was created in 1970 to allow multinational companies to transfer key employees from a foreign corporation to a US branch. The purpose of the visa, also known as the intra-company transferee visa, is to give US corporations the ability to bring top-level managerial or specialized employees into the US. There is no cap on the L-1 visa but some complain that it is being misused to send any type worker to the US.
The only winners when the visa programs are misused are the corporation and possibly the stock holder. To fight this situation some US citizens that felt they lost their jobs to lower salaried, US-based, foreigners decided to sue their former employers. For example, Sun Microsystems is being sued by former employees who say the company refuses to hire them back because the company can save money by keeping the H-1B visa holders. Although it's not illegal to hire or retain H-1B workers in lieu of American workers in most cases, employers must pay the "prevailing" wages for specific jobs in a region and the process cannot adversely impact a specific population of workers (such as older workers being replaced by younger/cheaper workers).
Amazingly, it gets stranger. One state senator tried to use the H-1B visa putting a different spin on it. North Dakota Senator, Byron L. Dorgan introduced in January 2003 what he called the "21st Century Homesteading Act". It would give H-1Bs about 160 acres of land to live on in North Dakota so that North Dakota could solve its exodus problem. This bill would use some of the $1,000 fee collected from the H-1B visa registration fee to buy land for H-1B holders. The money will also be used to get jobs for H-1Bs that are given land.
However, Congress could also pass something to temporarily raise the limit on the number of visas allowed. In other words, even if the cap is not raised, more H-1B visas could be imported into the US by using emergency legislation. It is estimated that currently there may be as many as a 500,000 H-1B visa holders in the U.S. And now they can stay longer than the originally stated six years. The stay can be extended so long as an H-1B holder is employed for one year beyond the six-year term (see H-1Bs stay longer). This extension would be renewed each year indefinitely until a decision is made on the green card.
According to Forrester Research, the total number of U.S. jobs moving offshore will reach 3.3 million by 2015. Of that number, about 472,000 will be computer-related jobs. Forrester also shows that 70 percent of enterprises that are turning to offshore outsourcing are sending out custom application development work. Sixteen percent are sending system analysis and architecture planning offshore. Thirty-two percent are using offshore outsourcing for system administration and support.
All this leads me to believe that the H-1B visa program is in need of a checkup. I have mixed feelings about our government allowing foreigners to take jobs from US citizens. After all, this is capitalism at work. However, I don't think it makes sense to bring the workers over here to take the jobs away from whole communities. The businesses are getting all the benefits without taking on any of the responsibilities. H-1B states the pay rate should be comparable to the existing pay. Apparently, the hiring doesn't happen that way because there would be no incentive for a company to hire an unknown worker from a foreign country if it had to pay the same amount for the same job. Some think that US companies have lost the idea of corporate citizenship. They say that companies have a responsibility to hire from within before they go outside the borders. To be fair, we are moving toward a global economy with a high percentage of multinational companies. However, we aren't there yet and all countries still hire from the local population for work done on site. Otherwise, the country (in this case the USA) and even the local area should have the right to recover any lost revenues (such as a lower tax-base) caused by these hiring practices. Finally, these are lean times and we need to keep our population working so they can contribute to health of a community, and if it means canceling the H-1B program - then make it so.