There is no doubt that the H-1B program has been the subject of intense scrutiny and contentious debate over the last several years. Indeed, there have been many recent (both successful and unsuccessful) attempts to restrict the use of H1-B visas through legislation.
Despite the prevalent backlash, the largest users of H-1B workers continue to defend their H-1B policies, with a call for the elimination of a yearly quota or cap. Under current law, USCIS can approve up to 85,000 new H-1B petitions, with 20,000 set aside for advanced degree graduates of universities in the United States. This year, for the first time in years (due in part to the economic woes facing us all and in part to other reasons), the quota was not reached in the first days of its availability. In fact, as of September 25, 2009, there are still approximately 18,300 H-1B visa numbers available for the 2010 fiscal year. Given the real impact of the economy on H-1B usage, therefore, is there any justification to place an arbitrary limit on the number of H-1B visas available in any given year?
Consider the case of Microsoft Corp. This tech giant, which utilizes more H1-B guest-worker visas than any other U.S. company, relates much of the company’s success to the contributions made by H-1B visa holders. Citing that H1-B employees have always accounted for less than 15 per cent of its U.S. workforce, Microsoft observes that H-1B workers, nevertheless, have long made crucial contributions to Microsoft's innovation successes and to its ability to create additional jobs in this country.
Despite its recent layoff of 5,000 workers (which affected its U.S. and H-1B workers proportionately), Microsoft has stated that it is confident that its successes and ability to create jobs will only continue with the help of foreign national workers. Admittedly, Microsoft’s posture alone cannot be the impetus behind the call for maintaining a viable H-1B program. On the other hand, a driving force for Microsoft’s success is quite telling, as the substantial majority of H-1B petitions filed by Microsoft are for core technology positions. According to the company, technology and engineering positions account for about 90 percent of its H-1B workforce.
Microsoft said it focuses its recruiting for core technology jobs at U.S. universities, which continue to be among the best in the world for computer science and engineering graduates. However, as one study found, in 2005 temporary residents earned more than 40 percent of the engineering and computer science degrees at U.S. higher education institutions. For doctoral degrees, that number was even higher, as temporary residents accounted for 59 percent of the degrees awarded in these fields that year. Without a viable H-1B program, a vast majority of these graduates will have little or no choice but to depart the U.S. and allow other countries and economies to reap the benefits of their advanced U.S. studies.
It is important to emphasize that rigorous compliance with the requirements of the H-1B program is essential and employers who make fraudulent use of the H-1B visa category should be punished. Indeed, any H-1B reform efforts should ensure that users of the program follow both the spirit and the letter of the law. Such reform efforts, however, should also recognize that placing an arbitrary limit on the number of H-1B visas available in any given year does nothing more than serve as a temporary, shortsighted victory for critics of the H-1B program—resulting in our failure to both attract and retain some of the best and brightest from around the world.
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Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP