When the immigration reform bill went down in flames in May, a provision to raise the cap on H-1B visas also went up in smoke. That the controversial legislation—loaded with such explosive political hot buttons such as border security and amnesty—failed came as no surprise as Congress has unsuccessfully wrangled with these issues for years.
What did surprise many in the tech sector, though, was the serious pushback by lawmakers on H-1B visas. An increase in the specialized-occupation temporary worker visas had been a top priority for the technology sector, which claims there are not enough qualified U.S. workers to fill their advance-degree positions.
"Its all part of keeping America competitive," said Roger Cochetti, group director of U.S. public policy at Washingtons CompTIA (Computing Technology Industry Association). Or as Microsofts Bill Gates told Congress in 2005, "The whole idea of the H-1B thing is dont let too many smart people come into the country. Basically, it doesnt make sense."
Just one day after the opening of the H1-B visa program process, the 2008 allotment of 85,000 H1-B visas is already gone. Last year, it took a month to exhaust the supply of H-1B visas.
With Democrats taking over control of Congress this year, tech harbored hopes of an increase in H-1B visas from the current 64,000 per year. The cap does not apply to petitions made on behalf of current H-1B holders or from applicants who hold advanced degrees from U.S. academic institutions, for whom an additional 20,000 visas are made available.
Yet while the bill was still in play, the U.S. Senate voted to increase the fees on H1-B visas while not raising the cap.
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"What many of us have come to understand is that these H-1B visas are not being used to supplement the American work force where we have shortages but, rather, H1-B visas are being used to replace American workers with lower-cost foreign workers," Sen. Bernie Sanders (I-Vt.) said in his May 25 floor comments.
Under Sanders bill, H-1B visa fees would have jumped $1,500 per application to $5,000 from the current $3,500. The increased fees would be funneled to a scholarship fund for Americans seeking degrees in math, technology and health-related fields.
"To win favor in China, Microsoft has pledged to spend more than $750 million on cooperative research, technology for schools and other investments," Sanders said. "If Microsoft and other corporations have billions of dollars to invest in technology…these same companies should have enough money to provide scholarships for middle-class kids in the United States of America."
That isnt only bad news for those pushing for an H-1B cap increase. If the issue comes up again, U.S. Senators Charles Grassley (R-Iowa) and Dick Durbin (D-Ill.) are not likely to support a cap increase without what they call serious reform of the program.
On April 2, the two lawmakers introduced legislation to crack down on employers who misuse H-1B visas and to give priority to U.S. workers. The Durbin-Grassley bill would require employers to make a good-faith effort to hire American workers first. Employers would also have to show that the H-1B worker would not displace an American worker.
The bill would also require employers to advertise job openings on a Department of Labor Web site before submitting an H-1B application. In addition, the bill would mandate the Department of Labor to conduct random audits of any company that uses the H-1B program and would require annual audits of companies with more than 100 employees that have 15 percent or more of those workers on H-1B visas.
"This is about protecting the American worker," Grassley said in a statement accompanying the bill. "Were closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and were ensuring more oversight of these visa programs to reduce fraud and abuse. A little sunshine will go a long way to help the American worker."
All of which adds up to a bleak future for an increase in H-1B visas out of the 110th Congress, particularly in a year when jobs and the U.S. economy are sure to be top topics on the campaign trail.
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