The H-1B program is designed to allow employers to hire foreign nationals to fill specialty occupations; that is, those positions that require a theoretical and practical application of highly specialized knowledge through the attainment of at least a bachelor’s degree (or an equivalent combination of education and/or experience) in a specific discipline.
Critics of the H-1B program claim that the program must be modified to combat what they refer to as "legal discrimination" and “displacement of U.S. workers”. Indeed, U.S. Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) have recently introduced legislation which, among other things, would require employers to certify that no U.S. workers were available to fill the proffered position before an H-1B petition may be filed on behalf of a qualified foreign national. Proponents of the H-1B program counter such allegations by pointing to the safeguards for U.S. workers already built in to the H-1B program. Additionally, what the mass media fails to point out is that the H-1B program is not specifically tailored to the IT industry. Rather, it fills necessary positions in a broad array of important disciplines, such as architecture, accounting, marketing, management and operations research, with some of the brightest, most capable individuals available worldwide.
Such talent comes at a substantial cost to employers -- compliance with the H-1B program is complicated and burdensome. Prior to sponsoring a foreign national for an H-1B petition, employers must (a) obtain a prevailing wage assessment from the U.S. DOL or an acceptable alternative survey source for the geographic area in which the foreign national will work, (b) agree to pay the H-1B worker the higher of (i) such prevailing wage or (ii) the actual wage it pays to other employees in similar roles, (c) prepare a memorandum describing the factors (e.g, experience, qualifications, education, job responsibilities) that it considered in determining the foreign national’s wage, (d) post a public notice of the H-1B employee's job title and salary in two locations for ten days at the foreign national’s place of employment, and (e) maintain a “public access file” containing evidence of each of the foregoing, which must be updated regularly and made available to the public at any time.
In addition, in the event of an audit by DOL or USCIS, the employer must be able to produce additional information, including payroll records showing the wage rates for the position, any data used to establish the actual wage for the position, and a copy of documents given to employees describing employee benefits.
In addition to developing the appropriate regulatory compliance program associated with hiring H-1B workers, the employer must also expend resources to hire experienced HR and legal personnel to insure that the employer remains compliant with the regulatory scheme. HR, with advice of counsel, is typically charged with the responsibility of updating the public access files when appropriate and budgeting and timing visa extensions as well as developing other, longer-term immigration strategies for their most valued foreign national employees. Additional expenses associated with the H-1B program include counsel fees and the rather excessive filing fees required by USCIS, most of which go toward education and training U.S. workers and uncovering fraud within the H-1B program. (see our prior post entitled, “H-1B Fraud Fee, Money Well Spent?)
When one considers the sum of such resources expended -- the only logical conclusion one can derive is that H-1B workers are clearly not “cheap labor” as some would have you think. Rather, the H-1B program involves a significant process and expense for employers to attract some of the best and brightest from all over the world.
No doubt there are employers who blatantly ignore the H-1B rules and take advantage of H-1B workers. In this vein, the U.S. government is aggressively pursuing indictments against alleged fraudulent use of the H-1B program. (see also our previous post entitled, “H-1B Audits On The Rise”).
On the other hand, employers who abide by the rules will attest that the H-1B regulations are quite complex and that, with proper enforcement of the existing regulations, the H-1B program provides a viable option for maintaining a competitive workforce. Indeed, given the above-described built-in safeguards for U.S. workers, taking a strict protectionist position which favors abolishing –- or even weakening -- the H-1B program would do nothing but send operations offshore; thus, in effect, cutting off our nose to spite our face. (see our prior post entitled,"H-1B Visa Usage On The Decline: Is It The Economy Or Increased USCIS Scrutiny Or Something More?”)
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Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP