Another H-1B fight looms in Congress

As the new, Democrat-controlled Congress took office last week, Elena Park, immigration practice leader at Philadelphia-based law firm Cozen O’Connor, had this piece of advice for companies that want to hire H-1B visa holders: Move quickly.

“The fact of the matter is, there is an H-1B blackout,” Park said. The blackout will end in April, when the U.S. Bureau of Citizenship and Immigration Services (USCIS) begins taking applications for visas to be issued during the federal government’s next fiscal year, which starts in October. Park expects numerous employers to file visa applications as soon as they can. “It’s sort of like a race,” she said.

Demand for new H-1B workers for the current fiscal year was so high that the USCIS reached the annual cap of 65,000 visas less than two months after it began accepting applications, the shortest period ever. An additional 20,000 visas limited to workers with advanced degrees from U.S. universities was gone in four months. The strong demand likely means that proposals to raise the H-1B cap will again be introduced in Congress, according to officials from industry and labor groups.

H-1B supporters, such as Jeff Lande, a senior vice president at the Information Technology Association of America, don’t think Democratic control of Congress will stymie pro-visa lobbying. Lande pointed to last year’s bipartisan support in the Senate for a proposal to increase the cap to 115,000 visas.

But some vocal opponents of the H-1B program took over congressional seats last week, including Sen. Jim Webb (D-Va.). In a statement posted on Policy Soup, a blog run by the Fairfax County Chamber of Commerce, Webb wrote, “I do not support guest worker programs. This applies to H-1B visas, except in the most extraordinary circumstances. I do not believe the myth of the tech worker shortage.”

Some H-1B critics also plan to seek improvements in the way the visa program operates.

“The system is worthless,” said Ron Hira, vice president of career activities at IEEE-USA, a unit of the Institute of Electrical and Electronics Engineers Inc. “The only thing protecting the [U.S.] workforce right now is the cap, and there is almost nothing protecting the foreign workers from being exploited.”

For instance, employers that want to hire workers who have H-1B visas must attest that they will pay prevailing wages and include the relevant wage data in so-called labor condition applications (LCA) sent to the U.S. Department of Labor. But the department’s role in checking LCAs is limited by law. It looks for errors and omissions electronically but doesn’t have the ability to randomly audit companies to ensure that they are complying with the wage laws. In addition, the agency can undertake investigations only in response to complaints.

In a report released last June, the U.S. Government Accountability Office said the Labor Department’s process for electronically reviewing LCAs is prone to mistakes. The GAO found 3,229 applications from H-1B employers that reported they were paying visa holders less than the prevailing wage.

Hira said the IEEE and other H-1B critics want the Labor Department to have more authority to audit employers and do compliance testing.