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
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
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