While a great deal of progress has been made over the last month to resolve the H-1B visa cap crisis, movement on the cap has been stalled while both the Senate and House of Representatives remain in recess until the end of the month. On July 24th, Congressman Lamar Smith surprised many by agreeing to compromise H-1B legislation. The legislation was indeed a compromise as evidenced by the fact that it drew criticism from both immigration advocates and restrictionists. The legislation is still threatened by a veto from President Clinton.

For the latest, most detailed information on the H-1B cap, we have been providing the public with an H-1B Emergency Update page on our web site at http://www.visalaw.com.

The following is an opinion piece recently written by Greg Siskind that addresses a few of the many issues in the H-1B controversy:

For as long as this country has existed, there has been a tension in public sentiment between those embracing immigration as a way to address the specific needs of the country and those who fear that immigrants take jobs away from Americans and are a drag on the economy. The argument played out more than 100 years ago when Chinese laborers built the nation's early railroad infrastructure. Xenophobia and economic nativism led to the imposition of severe restrictions on Chinese immigration that was not reversed for nearly half a century. The same arguments were heard during the great wave of immigration at the turn of the century - a wave that brought in the ancestors of more than 10% of the American public - and the result was the imposition of a quota system that basically halted the immigration of Jews, Italians and others from Eastern and Southern Europe. Many blame that policy for directly contributing to the deaths of thousands during the Holocaust who were denied visas to the US because of an inflexible American immigration policy.

Anyone who keeps up with the news today knows that the debate over immigration is as contentious as ever even though the arguments are fundamentally the same as they have always been. And there are a number of specific issues being debated by Congress this year that involve the fundamental question of whether immigrants contribute to the country or harm the country.

One that may be the most critical to the economic future of this country has now reached a critical stage in the legislative process. Currently, the US allows 65,000 professional workers in to the US each year under a category called the H-1B visa program. They fill a diverse range of jobs in such critical areas as computer science, medical research, health care and business management. US employers must be able to document that they are paying the HIGHER of either the wage the employer pays similar US-born workers or the wage the competition pays. And the H-1B program requirements include a detailed procedure for investigating and prosecuting suspected violations of the numerous requirements. While the program is far from perfect, it works.

As our economy has grown and prospered, particularly in the technology sector, the need to bring in foreign workers has increased beyond the 65,000 limit. And this year the limit was reached four months in advance of the end of the fiscal year - effectively bringing the program to a halt. Though more numbers will be released in October, there is already such a backlog in applications that many predict visas will run out only three months into the fiscal year.

Because these workers only represent 1/100th of one percent of the total population of our workforce, many immigration advocates thought that it would not be so controversial to allow a temporary lifting of the cap in order to meet the short term needs of our labor market. The US is almost at a historical low level of unemployment and several recent studies indicate that the technology sector has between 300,000 and 500,000 unfilled professional job openings.

The need is particularly critical right now for several reasons. One that most of the public knows but may not association with skilled foreign workers is the Year 2000 computer bug (also know as the "Y2K problem"). The media has done an excellent job reporting on the nature of the problem - that computers are not programmed to handle four digit dates and massive computer systems will crash unless millions and millions of computers are reprogrammed in the next 16 months. We have heard the horror stories about what may happen in 2000 if we do not address the problem now - up to 5% of US businesses will fail, massive government databases might implode and public safety might even be put in serious jeopardy. And most people know that many businesses, government agencies and educational institutions got off to a late start and are scrambling to fix the problem or minimize the damage if the problem is not solved.

What the public is not hearing enough is that American firms are having a severe problem in finding the skilled manpower to address this problem. The H-1B visa is the perfect visa to help solve this problem, but, alas, it is not available. . Often, experienced American programmers are needed on these projects because they are the only ones familiar with the old computer languages. But shifting these workers on to these projects has helped lead to the extraordinary number of open positions in the technology sector mentioned above. Other countries like England and Canada recognize that foreign computer workers can play a critical role in helping to address these problems and have set up large immigration programs specifically designed to address the Y2K problem. By not taking a similar approach, we are allowing other countries to get a serious step up on the US. More importantly, we are putting our children's economic future in jeopardy.

But foreign programmers are not just important in addressing the Y2K problem. Most economists agree (and they rarely agree on much else) that the technology sector is the driving force behind the prosperous US economy. One of the key reasons for the success of this industry is the fact that we have the world's best workers. But now companies are finding that they cannot readily find available workers with the latest skills. And they have a choice to make. They can settle for not being able to find suitable workers or, more ominous, they can simply close up shop and relocate to a country that has readily available workers. A substantial number of software firms have already done just that. Take a visit to India, Ukraine, Ireland or Israel and you will see a lot of familiar American corporate names operating plants. It is even easier for software firms to set up these facilities than manufacturing concerns since there is a ready supply of cheap educated labor and the work product is critical computer code that is not subject to any trade rules.

The sad result of backing companies trying to address worker shortages into a corner by barring or severely limiting foreign workers is that Americans actually lose jobs. When a software company shuts its doors and moves overseas, the jobs of Americans as well as foreign workers are lost.

Unfortunately, a bill that would address this issue in a very straightforward manner has been on a roller coaster ride in Congress. Senator Spencer Abraham, the Republican Chairman of the Immigration Subcommittee proposed a bill that would raise the annual cap for a five-year period. But the bill has taken a far different course in recent months and now looks far different than it once did.

House Immigration Subcommittee Chairman Lamar Smith (R-TX), a staunch immigration opponent, proposed legislation that would allow the cap to be lifted but at the expense of imposing draconian new bureaucratic requirements that would effectively cripple the ability of American employers to meet their temporary labor needs. The bill is backed by a strange coalition of anti-immigrant organizations who oppose any form of immigration and labor unions that see this bill as a way to energize its organization efforts in the computer industry.

After being stalled for months, Congressional leaders have hammered out a compromise that while making neither proponents or opponents of the H-1B visa happy, will at least allow American business to begin meeting their labor needs and address many of the agenda items of the immigration restrictionist forces opposed to the H-1B program.

That bill was on the verge of passing until a presidential veto threat and certain members of Congress were able to derail a vote in both the Senate and the House of Representatives. The President claims he still wants a bill, but wants to make many of the new requirements even tougher. Many in business feel that if there are any more weights piled onto the bill, that they will not support it since it is better to have a workable, but small visa program, then a larger program with an adequate number of visas but that is impractical for business.

Time is running short. Congress is now in recess, but when it meets again in September, it will have only a few weeks before its members adjourn for the year and go back home until to run for their election campaigns. If an agreement is not reached soon, we risk surrendering our status as the high tech capital of the world.