Con: Employers subvert program, use it to import cheap foreign labor
by John Miano on Jun. 04, 2007, under OpinionThe H-1B visa is an employer-sponsored, nonimmigrant guest worker visa for people in occupations that generally require a college degree.
While nearly every occupation imaginable is represented in the H-1B program, about half of the visas go to computer professionals.
There is an annual quota of 65,000 H-1B visas. Exemptions to this limit have been added, so the program has grown to about 117,000 visas a year.
This April, employers exhausted the entire visa quota for 2008 on the first day that applications were taken.
Now they want more.
Industry is engaged in an aggressive lobbying and publicity campaign for more H-1B visas.
This campaign spins the H-1B program as visas for the “highly skilled” workers in fields where U.S. workers cannot be found.
Examining the data shows something completely different: The H-1B is nearly exclusively used to import cheap labor.
The most offensive feature of the H-1B program is a well-known loophole in the law that allows employers to replace U.S. workers with H-1B guest workers.
Over the years, companies such as AIG, SeaLand and Dun & Bradstreet have openly and legally replaced hundreds of U.S. workers at a time with lower-paid H-1B guest workers.
Industry has blocked all attempts to close this loophole.
The biggest use of the H-1B program is to support moving technology jobs to foreign countries.
India’s commerce minister recently called H-1B “the outsourcing visa” and went on to explain why more H-1B visas were needed to increase the number of jobs moved from the U.S. to India.
More H-1B visas means more jobs being shipped overseas.
H-1B workers are supposed to be paid at least the prevailing wage. However, the law allows the employer to determine the prevailing wage, and the law limits the approval process to checking whether the form is filled out correctly.
Employers can claim nearly anything as the prevailing wage, and it will be approved.
Employer prevailing wage claims for computer workers average $16,000 a year below the median U.S. wage for the same location and occupation.
With the huge discrepancy between U.S. and H-1B wages, it is no wonder employers are clamoring for more visas.
The law now allows employers who use the Department of Labor as the prevailing wage source to make skill-based prevailing wage claims.
The Department of Labor defines four skill levels and a prevailing wage for each.
In 2005, employers using this system classified more than half of the workers as being at the lowest skill level, with just 5 percent at the highest.
When employers want more H-1B workers, they are “highly skilled.” But when it comes to determining their pay, these very same workers become low skilled.
There is also the problem of numbers. Since 2000, employers have imported enough H-1B computer workers to fill every computer job in America, and industry says this is still not enough.
H-1B needs to be cleaned up, not expanded.
The H-1B statutes have been designed to allow employers to abuse the program with impunity and to make it nearly impossible to punish violators.
What should be done?
• Close the loophole allowing the replacement of U.S. workers with H-1B workers.
• Require employers to recruit U.S. workers before filling a job with H-1B guest workers.
• Require employers to pay H-1B workers a wage that reflects what highly skilled workers actually earn.
• Eliminate restrictions on enforcement.
If the H-1B program were limited to highly skilled people who were paid the real prevailing wage, industry would not come close to using up the quota.
Congressman Bill Pascrell Jr., D-N.J., has introduced legislation in the House to clean up the rampant abuse in the H-1B program.
Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, have introduced similar legislation in the Senate.
As it stands now, the quota is the only thing that stands between the H-1B program and total chaos.
PRO: Visa needed to help UA student reach her potential, and make America stronger
OUR OPINION: Reform H-1B system before raising visit limit.
John Miano, a lawyer in Summit, N.J., is the founder of the Programmers Guild and has testified before Congress on H-1B visas several times.
