Dear Readers:

As many of you know, the H-1B cap is set to be hit any day now. This news will be greeted with a collective groan by employers around the country and with glee by the anti-immigrant groups out there who have been trying to bind the H-1B to the populist arguments condemning outsourcing of jobs by American companies. Our position has always been clear. H-1B visa holders SAVE jobs for American workers, not the opposite. When employers do not have ready access to needed workers – either through a lack of qualified American workers or lack of access to needed foreign workers - they don’t just sit back and let their global competitors take advantage of the situation. They simply move their operations to the places where they can find the people they need. And when they move their operations, Americans lose jobs.

Our long term job retention policy in this country needs to combine two notions – developing a domestic work force that is better trained to compete in the world and making up the gaps by recruiting the world’s best workers for the high end jobs for which there are not enough available Americans and hardworking willing workers for the low end jobs that Americans don’t want.

H-1B visas are part of the answer on the immigration side. So is a guest worker program like the one President Bush has proposed. The other side is tougher. Improving our education system is usually the subject of political rhetoric, but agreeing on the best methods to achieve results – much less ACTUALLY achieving results – is a challenge, which is difficult to meet. I don’t pretend to be an expert on education policy in this country. I just simply remind folks that H-1B workers are brought to this country not to replace American workers, but to work in jobs where there are not enough qualified Americans. Get more qualified Americans and H-1B usage declines. That has now been empirically demonstrated. When job losses piled up in this country starting two years ago, the number of H-1B applications plummeted dramatically. Count on H-1B demand to go up as the economy recovers. This is perfectly natural.

What is not natural is Congress’ efforts to second guess employers on how many H-1B visas are needed. We’re now locked into an arbitrary number that was selected out of thin air during bill drafting 15 years ago. What is not natural is how so-called conservative Republicans who are normally horrified when Congress seeks to impose more regulations on business have no qualms dictating to employers who they can and cannot hire to perform a specific job.

Perhaps there is room for compromise that will satisfy both sides of the debate. I throw out an idea for your consideration:

The H-1B numbers should be meted out according to the following principles:

1. When the overall unemployment rate falls below a certain number – let’s say around 5% for the sake of argument – there should be no cap on H-1B visas.
2. When the number goes higher, there should be another priority system that kicks in:
   1. A set number of H-1B visas should be allowed under a general cap – let’s say we stick to 65,000, but that number might be higher. We need this flexibility just because there are many jobs that are hard to fill even in tough economic times.
   2. The US Department of Labor should annually list occupations where there are extraordinary shortages (e.g. today we would be talking about teachers, nurses, physicians, and perhaps other occupations). Any occupations on the list would be exempt from the H-1B cap.
   3. Certain institutions that we want to encourage to hire the best qualified people and not just those with minimum qualifications – universities, research institutions, etc. – should be exempt from the cap as they are today.
   4. For the rest, employers should be able to have a fast track system for documenting that they have tested the labor market and should be able to hire H-1B workers over the cap (something along the lines of the web-based recruiting system President Bush announced in his recent immigration plan).

Of course, the existing prevailing wage and posting requirements would remain in place in order to assure Americans that American workers are not being bypassed in order to hire cheaper foreign workers.

A compromise like the one above represents a middle ground. H-1B numbers will remain available and during a booming economy, employers would have the flexibility to hire as needed. During a down economy, American workers can be assured that H-1Bs will be targeted carefully based on where there are demonstrated needs.

The other reason we need a proposal like this is because it takes away the need to go back to Congress to raise or lower the cap every time the economy changes. Congress has a consistent track record here for acting too slowly. In the past, the cap was raised at the end of an economic boom and the extra numbers became available when the demand was no longer there. This time around, the cap is dropping by two thirds just as we are moving into an economic recovery period. Count on Congress to move to slowly to raise the cap the next time around. The better solution would be to have a long term, flexible solution that does not depend on Congress to stay on top of things.

As the H-1B visa is on people’s minds, we’ve decided to update and re-run our ABCs of Immigration article on H-1B visas. We’ve also re-drafted it in the question and answer format that many of you have said you prefer.

Finally, as always, we remind readers that we're lawyers who make our living representing immigration clients and employers seeking to comply with immigration laws. We would love to discuss becoming your law firm. Just go to http://www.visalaw.com/intake.html to request an appointment or call us at 800-748-3819 or 901-682-6455.

Regards,

Greg Siskind