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Dear Editor:
There are a lot of misleading statements and inaccuracies in Chicago Tribune's news item, Congress Takes on H1B visas (which appeared in the April 9th issue of Immigration Daily), which I would like to point out. First of all, Mr. Peter Bennett claims that "every place [he] sent a resume had an H1B bidding for the same job." I wonder how Mr. Bennett knew that. Companies are not in the habit of divulging information about fellow job applicants to those who apply, not even to recruiters. That would be confidential information. Mr. Bennett then states that he was there just so they (the company) could say they had interviewed an American. Well, this implies that a pre-requisite of the H1B program is the testing of the US labor market. Here, Mr. Bennett and the writer are confusing the H1B program with the permanent labor certification program. There is no requirement to test the labor market for H1B's, and hence no requirement to "interview Americans". There is, however, a requirement that the prevailing wage be met, precisely so that U.S. workers' wages are not undercut. As one who handles immigration matters for many IT companies, it has been my experience that H1B workers can be among the highest paid workers in a company. Rather than think of the justification for H1Bs in terms of worker shortages across the IT industry, I think it's more constructive to see it as shortages in particular skill areas. Companies are simply bidding for the best talent - the high tech workers with the appropriate skillsets - often the hottest and most marketable skillsets - whereever these workers may come from. After all, if you are a company trying to make a profit, particularly one in a besieged industry within a struggling economy, don't you have to hire the best person for the job in order to stay competitive? Many critics like to talk about high tech workers as if they were a homogenous lot. However, as anyone who actually works in the industry knows, very few software engineers are boilerplate professionals. Each job demands a unique skillset, which is very dynamic. By no means is one software engineer interchangeable with another. Add to that the fact that some multinational companies have proprietary technology which is developed and marketed all over the world through corporate partnerships, and the pool of potential job candidates becomes truly global. While I sympathize tremendously with any unemployed American high-tech worker, I don't think the H1B program should be scapegoated for all of his job woes. The second misleading comment in the article concerns the return to the 65,000 annual cap on H1B's. The article says that foes of the H1B program want the annual cap to return to the 65,000 limit established in 1990. Well, this is not something for which they need to lobby. The same legislation that raised the cap to 195,000 - the American Competitiveness in the 21st Century Act (AC21) stipulated that the cap would return to 65,000 in October of 2003. There need be no additional act of Congress to roll the numbers back, as the article implies. In fact, there may need to be an act of Congress to increase the numbers should the economy recover such that labor shortages are once again a factor. The third inaccuracy concerns the statement that H1B petitioners must overcome the assumption they will try to immigrate. This is not true. The INS has for some time recognized the principle of "dual intent" with regard to H1B's. This means that H1B's can legitimately have the intent to work temporarily at the same time that they can have the intent to apply for permanent residence. By contrast, F-1 students cannot have dual intent until and unless they convert to H1B status. And, yes a green card candidate can work in the U.S. on a permit for as long as the process takes, but why is Mr. Gildea indignant about this? By the time the individual has filed an I-485 application and obtained an Employment Authorization Card, he has already met the criteria for labor certification, including the labor market test, and his employer has filed an I-140, Petition for Alien Worker on his behalf. Most people have, by the time they file their I-485, been in the permanent residence process for 1-3 years already. No one is pretending that the immigration program is temporary by that point. Many have by the end of the process given 6-10 years of their lives to one company, perhaps forfeiting better career opportunities along the way. Are we going to begrudge them the promise of some stability as to their living situation so that they can purchase a home, educate their children and become contributing members of their communities? Are we going to force companies to lose loyal and talented workers because of increasing INS (BCIS) processing delays? Given that this is such an emotional issue for so many people, all the more reason I think we have to be really careful to get the facts straight.

SJD



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