Rep. Luis V. Gutierrez (D-IL) announced legislation Dec. 15 that would raise the annual cap on H1-B visas and allow U.S. companies to recapture 309,500 unused H-1B visas from previous years. The legislation is part of a larger, more comprehensive immigration bill sponsored by Gutierrez and nearly 90 members of the U.S. House.
While Gutierrez announced the bill, the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009, at a press conference, details of the legislation were vague. The actual bill is unavailable and telephone calls and e-mail to Gutierrez's office were not returned.
However, the CEI (Competitive Enterprise Institute) said it had obtained an early "outline" of the legislation detailing several of the H-1B provisions of the bill. In addition to the recapture of past H-1B visas, the bill would also exempt several categories of highly skilled workers from employment-based visa caps, creating a de-facto expansion of the H-1B visa cap. Currently the annual cap is at 85,000 H-1B visas.
The legislation would also require employers to prove they tried to hire American workers before turning to H-1B visas and beef up H-1B visa enforcement and workplace inspections.
"If you want to bring a worker from outside the United States to come and work here, we want to make sure American workers get the first opportunity at every American job," Gutierrez said.
The bill would also create a new federal agency -- the Commission on Immigration and Labor Markets -- that would recommend to Congress where to annually cap H-1B visas and to recommend "employment-based immigration policies that promote economic growth and competitiveness while minimizing job displacement, wage depression and unauthorized employment."
Any H-1B regulation tied to larger immigration issues has proven problematic in the past. The bill not only faces huge hurdles in the House but the Senate is expected to consider its own immigration reform early next year.
Despite an early slump in demand for the visas, U.S. employers are likely to hit the cap again this year. Last year, the H-1B quota was met in one day.
Historically, the demand for H-1B visas can be directly correlated to the state of the economy.
In the 1990s, as the tech economy sizzled, Congress kept raising the cap, peaking in 2001 with 163,000 of 195,000 available H-1Bs issued. When the tech bubble burst and the Silicon Valley economy began to fizzle, demand fell to 79,000 visas issued. By 2004, Congress dropped the cap to the current 65,000 but appeased tech by granting the additional 20,000 H1-Bs for advanced degree workers.
Adding to this year's slow start is a new law that bars financial companies receiving federal bailout funds from applying for H-1B visas.
Critics of the program have long claimed U.S. employers are using H-1B visas to hire workers for less than the U.S. prevailing rate, but the controversy gained serious traction after the government released a 2008 report that highlighted rampant fraud in the program. The report revealed more than a 20 percent violation rate by employers who use the H-1B visa program.