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What is The Future of the H-1B Program?

November 12, 2008

The H-1B reform debate is on again. Most believe that the H-1B visa program needs reform. Some lawmakers in Washington, DC are promising to introduce legislation to address this issue. The United States Citizenship and Immigration Services (USCIS) issued a report concluding that incidence of fraud in H-1B petitions are at an unacceptable rate of 13% and technical violations reaching 7.3%. Sen. Chuck Grassley has publicly released a statement reiterating his commitment to tighten H-1B and L visa program enforcement referencing his proposed H-1B VISA REFORM BILL TO PROTECT AMERICAN WORKERS introduced last year.

This debate will begin at a time of national economical crisis where 10.1 million Americans are currently unemployed according to the Bureau of Labor Statistics, US Department of Labor. Some states and cities, such as Detroit, Michigan and Columbus & Cleveland in Ohio, have not seen such high unemployment rates in years. The timing couldn’t be worse for such an important debate to be truly balanced and helpful. The fear of rising unemployment rate may trump the voice of reason in assuring that America has access to talent unavailable in the US to remain competitive in the world. Some raise the question as to whether USCIS can fully by trusted to issue a report regarding the H-1B program practices when they also have to justify collecting millions of dollars in fraud fees. Should this job be given to an outside agency not profiting from collecting fraud fee? Does USCIS feel pressured to find fraud in the program now that they are collecting a $500.00 fraud fee on each H-1B petition?

We must also be reminded that the largest number of H-1B’s are used up by our large universities and publicly traded corporations, such as Microsoft, IBM, ORACLE and INTEL. Clearly, enforcement and cracking down on employers who usurp the H-1B program is necessary and critical. But equally as warranted is to rid the H-1B program of requirements that are unreasonable and impossible to comply with. One example is requiring that employers ascertain that there has not been a layoff of similarly situated American workers at any secondary site where the H-1b employee may be located for a brief period. Despite an approximately 80% compliance rate there is room for improvement. This would require a combination of more stringent enforcement and modernization of the H-1B program to meet business practical realities. Also, it may require an outside, disinterested agency to truly test the compliance rate of the H-1b program.
If Senator Grassley has his way, we may see one or all of the following implemented soon in the shape of a reform bill:
• Require employers to advertise for any position prior to filing an H-1B petition
• Place a freeze or cap on H-1B filing for employers of more than 50 employees if more than half of their employees are on H-1B visa
• Strengthen DOL audit capabilities and information sharing with USCIS.
• Improve whistleblower protection laws currently existing
• Expand the investigative arm of DOL by 200 employees.
• Require the government to inform H-1B visa holders of their rights under the law.

Unfortunately, there is no mention of modernization or positive reform in his proposal.

Shihab & Associate provides professional assistance in the area of immigration law and H-1B visa representation. Please contact our attorneys or call the law firm of Shihab & Associates Co., LPA at the office nearest to you to speak with an attorney. Please contact us and experience how “We Embrace your Dreams and Make Them Our Goal.”

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