"The H-1B Visa Program: America's Home Court Advantage In Global Competition"

"The H-1B Visa Program: America's Home Court Advantage In Global Competition"

By Jeanne Malitz, Member, World Trade Center San Diego and attorney at law with Morrison & Foerster LLP in San Diego

The World Trade Center San Diego recommends that Congress enact new legislation that will increase the number of H-1B visas available for fiscal years 2000 through 2003, and opposes legislation that restricts the use of the H-1B program.

The H-1B program is a prompt, lawful way for U.S. employers to hire foreign-born professionals (such as engineers and computer programmers) on a temporary basis. This program allows U.S. businesses 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 telecommunications, pharmaceuticals, biotechnology and education. The issue is whether the number of H-1B visas granted by the U.S. government be raised from current levels, and if so, should Congress limit the use of the H-1B program by placing additional restrictions on employers and companies.

Holders of H-1B visas are foreign professionals hired on a temporary basis 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.

The subject of H-1B visas was most recently addressed by Congress in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The ACWIA increased the number of H-1B visas to be granted beginning in 1999. According to the ACWIA, no more than 115,000 visas would be granted for each FY1999 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, such as requiring high-use companies to first recruit in the United States, and not lay off American workers before using the H-1B program. ACWIA also stiffened 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.

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:

• Needed skills - To obtain essential skills or rare and unique knowledge;
• Global market expertise - For their special expertise in overseas needs, markets, trends or distribution, allowing U.S. businesses to compete in global markets; and
• Temporary shortages - To fill temporary shortages of needed skills.

If American companies are prevented from hiring essential people to fill critical positions, an increasing number of jobs dependent upon these positions will go unfilled each year, resulting in American jobs being lost and American projects losing out to foreign competition. As the U.S. economy becomes increasingly global, H-1B professionals become ever more essential to San Diego's continued economic growth. Larry Fitch, President & CEO of San Diego Workforce Partnership, Inc. states "The only way we will be able to permanently resolve the issue of importing workers for high technology positions is by growing our own workforce. This will require a major commitment to and investment in our youth. Unfortunately, this is a long-term solution, and the crisis is now. We must continue to use H1B visas in the short term, and ensure that we are accessing the training dollars that are available with the visas to upgrade the skills of our current workers."

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 and was reached in March in FY 2000.

Kim Giannone, Employment Specialist, Insight Electronics, LLC (dba ABS) says "We firmly support an increase, and even the removal, of the limit on H1Bs. We are an international company and we have problems filling our technical and engineering positions in all areas. It is very difficult (if not impossible) for us to fill our openings with the available US workers. There are simply not enough skilled and qualified American workers to fill our specialty technical positions. Further, we do not want more restrictions on the use of the H1B program. We fully comply with the requirements as they stand today and additional restrictions will make the program virtually unavailable tomany company in the San Diego area-especially the smaller, start-up companies."

The San Diego World Trade Center supports legislation that will accomplish the following:

• Increase the H-1B visa cap to 200,000 or more for each year for the period FY 2000-2003.
• Exempt from the H-1B visa cap non-immigrants 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.
• Permit extensions of H-1B status past the six-year limit for H-1B beneficiaries who have immigrant visa applications pending.
• Allow an H-1B professional to change H-1B employment upon filing of an H-1B petition.
• Allow a roll-over of unused immigrant visas in any given calendar quarter to oversubscribed countries (i.e. India and China) and recapture unused employment-based visas from FY 1999 and FY 2000.

The World Trade Center San Diego opposes legislation that would unreasonably hamper businesses from using the H-1B Program. Specifically, the World Trade Center San Diego opposes legislation that attempts to do the following: (1) require employers applying for H-1B visas to document that their total payroll to U.S. workers has increased in the last year and their median wage has increased in the last year; (2) require sponsoring employers to have at least $250,000 in gross assets or document ongoing business activity; (3) require H-1B nonimmigrants to be in full-time employment and be paid at least $40,000 per year; (4) eliminate the availability of work experience equivalence to a required bachelor's degree; and (5) require employers who use the H-1B program to post on the Internet the company name, salaries, positions, nationalities and academic credentials of foreign professional employees.

THE EFFECT OF THE H-1B PROGRAM ON THE SAN DIEGO ECONOMY

Raising the H-1B visa limitation will have an immediate and significant impact on the San Diego economy. The H-1B program is widely used by San Diego's largest companies as well as its small businesses and start-up companies. San Diego is one of the fastest growing regions in the country in the high-tech, biotechnology, and research industries. San Diego is home for hundreds of start-up companies and relatively small businesses. These industries have the greatest demand for the H-1B program. San Diego employers use the H-1B program to obtain skilled foreign professionals at a time when unemployment is at an all-time low and competition for skilled technical workers is at an all-time high. Increasing the H-1B visa cap without imposing restrictions on employers, especially companies with assets less than $250,000, would greatly enhance the growth of such companies as well as encourage increased investment into the San Diego region. Further, numerous safeguards and penalties are already in place to guard against abuse by employers and no further restrictions are needed