More evidence of dysfunctional immigration policy

While most Americans spent this past weekend relaxing and enjoying the first days of spring, in the personnel offices of Microsoft, and Infosys and in countless immigration attorney's offices across the country, the yearly frenzy of the H-1b work-visa filing deadline was fast approaching. Many, like San Francisco attorney Gali Schaham Gordon, spent Saturday putting the final touches on the up to 50 pages of forms sometimes required for each applicant.

By the end of the Monday deadline, representatives of the USCIS said the agency had received a record 150,000 applications for the 65,000 visas available for the 2008 federal fiscal year.

Since the yearly cap was hit in one day, immigration officials announced they would accept all the applications filed Monday and Tuesday and place them in a computer-generated lottery to determine who will receive the visas, which are reserved for architects, engineers, computer programmers and other high -skilled workers.

The visa program, which claims to insure that the "best and brightest" from around the world have an opportunity to work in America and eventually become citizens, was reduced in less than 24 hours to a random lottery.

Herein lies an example of the underlying dysfunctional nature of the current immigration system.

Programs, which at face value look totally rational and in fact beneficial, turn out, due to incompetence, abuse, and a lack of true regulation and oversight, to be ineffectual to the point of being detrimental to both the immigrants and the American people.

Started in 1990, the H1b visa program was supposed to allow those with special skills, higher education, and technical expertise to enter the country legally to work and eventually receive permanent residency and citizenship. It was touted as the best way to assure that a future Einstein would not be turned away at the border. This is particularly true in the case of those foreign students who make up half of the graduates of US universities with degrees in engineering and mathematics.

But what has happened in the years since it's inception has nearly insured that the truly "best and brightest" would in fact be turned away, or at best be placed in an immigration limbo of endless paperwork, long waits and lotteries. Utilizing a first-come first-served system to issue the visas, last years quota ran out in eight weeks… this year…it took less than a day.

In the meantime, an ever increasing number of corporations use the program, and it's lack regulation and oversight, to pad their workforce with temporary workers earning lower wages with little or no legal recourse. Despite claims of portability and competitive wages, many H-1b holders are locked into jobs that pay below market standards with little chance of mobility to find other employment. They are in essence "owed" by those who sponsor them since changing employers forces those trying to get green cards to start the whole process over again with a new sponsor, a process that can take years of paperwork and bureaucratic red tape.

Yet some businesses love the program. Bill Gates regularly makes pilgrimages to Washington to lobby for increased guest-workers for Microsoft even though about one-third of his 46,000 U.S.-based employees have work visas or are former H1b holders who are now legal permanent residents with green cards, according to company spokeswoman Ginny Terzano. Other tech companies are estimated to use guest workers to fill nearly half their employment needs. Since both the H-1b visas, and the employment based green cards that result from them, are limited each year by quotas, the companies that over-utilize them in effect hold a monopoly over the immigration system.

Surely the intent of the program was not to concentrate larger and larger numbers of temporary workers in an ever-decreasing pool of employers. We have no idea yet how many of the 150,000 applications that flooded the USCIS offices on Monday came from Infosys Technologies, Microsoft and Deloitte & Touche, three of the largest users of H-1Bs according to the Department of Labor's office of foreign labor certification, but it's safe to assume they were once again well represented.

Besides the inherent inequity in the program for the immigrants who rely on H-1b visas to live and work in the country, opponents of the program claim that abuses of the system have allowed corporate sponsors to eliminate older, high-paid US workers to be replaced by cheaper foreign labor. Similarly, smaller US companies see the program as not meeting their needs due to its inefficient implementation.

The current H1-B quota is 65,000, but a series of exemptions make that a soft number. In 2005, the most recent year for which data are available, the U.S. approved 116,927 H1-B visas.

By law, such temporary work permits are normally issued to persons who hold at least a bachelor's degree. Government data show roughly half of people holding H1-Bs meet that minimum. The other half have master's degrees or better, although high school dropouts with vital experience can qualify -- which happened in 2003 when 117 fashion models won H1-B visas.

H1-B work permits run on a fiscal year that begins Oct. 1. Immigration officials say Monday is the soonest they'll accept applications, and employers fear that if they don't file their applications as soon as possible, this first-come, first- served system will exhaust its quota quickly.

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A similar rush last year forced Seth Sternberg, chief executive of Meebo, to delay some hiring plans. Meebo, a Mountain View developer of a Web site for instant messaging from anywhere, had hoped to add two foreign programmers to its 15-person staff last year. On May 27, the startup filed the paperwork to hire the two people, one from the United Kingdom and the other from Italy. But it turned out that last year's quota had been exhausted the day before Meebo's requests arrived.

"We'll have those applications ready to go day one," Sternberg said last week. He plans to resubmit the visa requests to hire those two same code warriors starting this October

Such frustrations have made an overhaul of the H1-B system a top priority of high-tech leaders.
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But H1-B critics -- led by older American-born programmers and their academic allies -- say even if U.S. high-tech firms need employees from overseas to stay competitive, the program is flawed in a way that leads to the loss of jobs through outsourcing.

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… those opposed to lifting the H1-B cap say the present program gives employers all the tools they need to absorb the highly skilled foreign graduates that tech officials talk about, and complain -- with justification -- that the so-called cap of 65,000 is a fiction.

A November report from U.S. Citizenship and Immigration Services puts the basic quota of H1-Bs at 65,000. But the law also says the first 20,000 H1-B applications filed for any masters' degree candidate or higher do not count against that quota. So that gets the number to 85,000. The report adds that "petitions for new H1-B employment are exempt" for foreigners hired to work at universities, nonprofit research institutions or governmental laboratories, and that would push the cap above 85,000.

According to the report, the United States approved 103,584 H1-B visas in fiscal year 2002; 105,314 in 2003; 130,497 in 2004; and 116, 927 in 2005.

"It sure looks like they're issuing a hell of a lot more visas than they ought to be," said John Miano, an attorney and H1-B critic from New Jersey.

If hiring the best and brightest is the goal, Miano said, the data show that the current program misses the mark because it awards most H1-B visas to people with bachelor's degrees (45 percent in the most recent year, down from 49 percent the prior year) who come from low-wage countries (India tops at 44.4 percent, China second at 9.2 percent).

Sacramento software engineer Kim Berry, president of the Programmers Guild -- which he describes as "disproportionately over age 40 and disproportionately underemployed" -- said it's tough for U.S. tech workers to see jobs going to H1-Bs.

San Francisco Chronicle

The recently introduced "Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act", the House bill, sponsored by Reps. Luis V. Gutierrez (D-Ill.) and Jeff Flake (R-Ariz.), includes a provision to lift the cap on H-1b visas to 115,000 as part of a comprehensive overhaul of immigration law. But without any real improvements in regulation and enforcement of the program, the STRIVE Act as currently written would only exacerbate an already bad situation.

Both the H-1b program and its companion, the H-2A agricultural guest worker program, have thus far been dismal failures. The same should be expected of the proposed H-2C guest worker program that would allow for 400,000 unskilled and non-specialty workers to enter the country.

The fatal flaw in all these temporary work programs is a glaring lack of regulation, government oversight, enforcement of labor laws and safety regulations, accountability and administration. Thus far the programs already instituted have been abused and misused by employers to the detriment of both immigrant and US workers.

On Monday, as USCIS sorted through an avalanche of H-1b applications, in Washington, Senators Richard Durbin and Chuck Grassley introduced the "H-1B and L -1 Visa Fraud and Abuse Prevention Act of 2007", a bipartisan effort to address the problems of the guest worker program.

The 32-page Senate bill would impose a host of additional obligations on employers. They would be required to pledge that they made a "good faith" effort to hire an American before taking on an H-1B worker and that the foreigner was not displacing a prospective U.S. worker.

Employers would also have to advertise job openings for 30 days on the Department of Labor's Web site before making H-1B visa applications, and they would be prohibited from advertising positions only to H-1B holders.

In addition, companies with 50 or more workers would not be allowed to employ more than half of their staff through H-1B visas.

In an attempt to discourage employers from hiring foreigners at lower wages than their American counterparts would command, employers would have to pay all H-1B workers the "prevailing wage," as calculated by a different method that raises the minimum to a higher level than it currently stands.

The proposal also aims to beef up the Department of Labor's authority to investigate abuses, giving the department the power to conduct random audits on employers, to review applications for "clear indicators of fraud," and to hire 200 additional employees to administer, oversee and enforce the H-1B program.

Grassley described the bill as aimed at "closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and...ensuring more oversight of these visa programs to reduce fraud and abuse."
Cnet.com

Although a step in the right direction, Senators Durbin and Grassley's proposal still falls short of the kind of real protections needed if any guest worker program is to work. Its worker protections, requirements to qualify for guest workers, and protections of US workers still leave much to be desired.

If in fact we must accept the idea that immigrant workers must be "tried out" on a temporary basis before they are allowed to join the workforce permanently in order to put together a political coalition willing to address immigration reform in any meaningful way, then we must demand that it be done correctly. The protections afforded by the Durbin bill are a good starting point…but far more needs to be done.

Enforcement of ALL labor laws MUST go beyond 200 inspectors looking for guest worker violations.

Any company applying for as little as one guest worker should be required to meet and/or exceed all labor, occupation safety, and workplace regulations.

Just as many businesses must have yearly licensing and inspections by agencies such as the health department or other regulatory bodies, any business employing guest workers should be required to undergo periodic inspection and licensing by the DOL, OSHA, and all other pertinent labor regulatory agencies in order to continue utilizing the program. Those who do not comply should not only face the penalties already in place for workplace violations but have additional harsh penalties placed upon them in regards to guest worker abuse.

Enforcement of labor standards must be the cornerstone on which any sort of guest worker program is accepted.

If we must accept compromises in order to intact meaningful immigration reform, then those compromises must be made by ALL concerned. To ask workers, both immigrant and native-born to accept guest worker programs without true oversight and regulation, while business is allowed to continue as usual should be deemed unacceptable.

If in fact, businesses need these workers on a temporary basis to fill labor needs as they claim, they should be more than willing to assure that they are doing so within the guidelines of new tough, but fair, regulation. If they oppose such regulation and oversight it can only be because they wish to exploit both US and immigrant workers. … It's as simple as that.

Related:
Demand for H-1B visas exceeds limit, San Jose Mercury News

U.S. reaches 2008 cap for skilled-worker visa petitions in single day, Seattle Times

U.S. Companies Race to Fill Quota of Coveted Technology Worker Visas, Washington Post

Statement by AFL-CIO President John J. Sweeney on the Introduction of the H-1B and L-1 Visa Fraud and Abuse Prevention Act


Senate bill gives Americans preference for tech jobs, Cnet.com

Tech firms scramble for visas, San Francisco Chronicle

Overveiw of STRIVE Act, Migra Matters

Southern Poverty Law Center finds guest worker program close to slavery, Migra Matters

tags: immigration, STRIVE Act , H1b visa, guest workers, h2a visa, H.R.1645