In recent years the debate over immigration has taken center stage. In particular, the federal government's H1B visa program has become a particularly contentious issue.
Those who oppose the program or the size of the program believe that it takes jobs away from American citizens in fields that have traditionally high pay such as technology. Those who are proponents of the program believe that it is beneficial because it provides diversity in the workplace, and it assist people who may not be able to make as much money in their home countries. The purpose of this discussion is to analyze the policy implications in the legal field of the H-1B visa problem and solutions, paying close attention to Bill Gates proposal for how to remedy the H-1B shortage
The H-1B visa is a component of the Immigration and Nationality Act (INA) and was originally created by the Immigration Act of 1990. According to an article entitled "H-1B VISA PROGRAM Labor Could Improve Its Oversight and Increase Information Sharing with Homeland Security" there have been a number of changes related the number of H-1b visas that are granted annually. The article explains,
Congress passed the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), which increased the limit to 115,000 for fiscal years 1999 and 2000. In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act, which raised the limit to 195,000 for fiscal year 2001 and maintained that level through fiscal years 2002 and 2003. The number of H-1B visas reverted back to 65,000 thereafter. An H-1B visa generally is valid for 3 years of employment and is renewable for an additional 3 years ("H-1B VISA PROGRAM Labor Could Improve Its Oversight and Increase Information Sharing with Homeland Security")."
The Sections of the act associated with H1B visas are 101(a)(15)(H)(i)(b) and (b1); 212(n) and (t), and 214(g) of the Immigration and Nationality Act (INA) as amended (8 USC 1101(a)(15)(H)(i)(b) and (b1), 1182(n) and (t), 1184(g); 20 CFR Part 655 Subparts H. And I,) ("Employment Law Guide").
The Act quantifies the H-1B program as a plan of action that allows employers who want to hire nonimmigrant aliens to work in specialty occupations in addition to fashion models of "distinguished merit" ("Employment Law Guide"). Employers can issue H-1B visas to employees that meet these qualifications ("Employment Law Guide"). In addition to the H-1B visa the act also designates a H-1B1 visa that employers can give to nonimmigrant aliens from Singapore and Chile ("Employment Law Guide"). These individuals must meet the requirements as it pertains to specialty occupations ("Employment Law Guide").
Specialty occupations are defined as those occupations that require a bachelors degree ("Employment Law Guide"). Workers who get H-1B visas include teachers, engineers, and computer programmers. In order to gain access to H1-B visas for employees, employers must file a special form called the Labor Condition Application. In addition the employer must complete state department forms known as ETA 9035 or ETA 9035E ("Employment Law Guide"). In addition to these conditions, the employer has to make several promises as it pertains to the employee payment, working conditions and intent to hire. More specifically the employers must promise to do the following:
1. Compensate the nonimmigrant workers in a manner that is consistent with or equal to the local wage or the same as the wage of the employer ("Employment Law Guide"). Under certain conditions the employer must also pay for time that is not productive ("Employment Law Guide"). The employers must also offer those with H-1B visit's the same types of benefits given to American Workers ("Employment Law Guide").
This particular regulation is designed to ensure that workers with H-1B visas are treated fairly in the workplace. The federal government want to ensure that these workers are not exploited as a means to cheap labor. This also designed to protect that American workers from being overlooked for certain jobs because the compensation must be identical. Although this is a good regulation to have there are ways that employers have been able to curtail the implementation of some of these rules. This will be examined later on in the discussion.
2. Supply working conditions to those with H-1B visas that do not impact other employees that are employed in a similar capacity ("Employment Law Guide").
This is another rule that was designed to protect both the American workers and those workers participating in the H-1B program. Under this regulation, American workers are not to be inconvenienced by the addition of workers in the H-1B program. Therefore the conditions of those in the H-1B program must not disrupt the job duties of American employees.
3. Those holding H-1b visas cannot be employed in locations that have a strike or lockout as it pertains to occupational classification ("Employment Law Guide"). In addition the employer is obligated to inform the ETA if a strike or lockout is going to take place a specific location ("Employment Law Guide").
In an effort to protect all workers, those with H-1B visas cannot be sent to work in places where a strike or a lockout is occurring. The employer cannot create a scenario in which foreign workers take the place of American workers who have some type of grievance with their employer. This particular provision is designed to assist employers and striking workers in ensuring that grievances are handled in a timely manner and there are not outside influences that hamper the ability of employees or their unions in settling disputes.
4. Within a month of completing the Labor condition Application the employer must notify the bargaining representative that the organization wishes to hire H-1b employees ("Employment Law Guide"). If for some reason such a representative is unavailable the notification should be sent electronically or placed in the location for which the employer wishes to hire H-1b employees ("Employment Law Guide").
Applying for H-1B visa status is not something that can be done without notifying the proper authorities. One of the reasons that this must occur is because the government wants to ensure that the proper conditions are present and that the employer is not attempting to circumvent any laws or regulations associated with the program or other laws.
The article further explains that H-1B visas are capped at 65,000 during a fiscal year, subject to certain exceptions. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore. Additional rules apply to H-1B dependent employers and willful violators of the H-1B rules. These rules sunsetted for H-1B employment under LCAs filed after September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004. An H-1B dependent employer is, roughly, one whose H-1B workers comprise 15% or more of the employer's total workforce. H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment can be exempted from these additional rules ("Employment Law Guide")."
In addition to the aforementioned regulations that govern the H-1B visa program, the program also has regulations that are designed to protect American workers from becoming displaced as a result of the hiring of H-1B visa employees ("Employment Law Guide"). According to the INA there are three main vehicles that the employer must employ to ensure American workers are recruited and not displaced. These vehicles are as follows.
1. During the 90 days prior to applying for H-1b visa status, the employer cannot terminate an American work with the same or similar job position ("Employment Law Guide"). This rule also applies to extending the H-1B visa for an employee ("Employment Law Guide").
This particular law is designed to ensure that American workers are not simply replaced by those workers participating in the H-1B visa program. It is designed to make certain that American workers are not displaced when employees participate in the H-1b program.
2. According to the rules and regulations presented by the LCA the company or firm hiring someone with an H-1B visa is not allowed to place the H-1b employee at the worksite of another ("Employment Law Guide"). However there is an exception to this rule. The exception asserts that if an employer makes a sincere attempt to ensure that the other company of firm has terminated or desires to terminate an American worker 90 days prior to or after placing an H-1B worker ("Employment Law Guide").
This particular aspect of the act guarantees that the employer applying for the H-1b status is the same employer that will be employing the H-1B worker. This is designed to assist the government in keeping track of H-1b workers. In addition the exception to the rule also has stipulations that are designed to ensure that the H-1B worker is needed.
3. The third and final regulation asserts that the employer must make a concerted effort to recruit an American worker for a job position before seeking an alien worker…