A new H-1B fight looms with the Democratic Congress

With a new Congress taking office Thursday, Elena Park, the immigration practice leader at Cozen O'Connor in West Conshohocken, Pa., has this advice for clients who want to hire H-1B visa holders: Move quickly.

"The fact of the matter is there is an H-1B blackout," said Park. Demand was so high for H-1B visa holders last year, that the U.S. Bureau of Citizenship and Immigration Services (USCIS) reached the 65,000 visa cap less than two months after it began accepting applications -- a record. And an additional 20,000 H-1B visas limited to graduate students was gone in four months.

The blackout ends in April, when the USCIS will begin taking H-1B applications for visas that will be issued in October at the start of the 2008 fiscal year. Park expects many employers to file applications in April. "It's sort of like a race," she said.

That race for visas is almost certain to mean that Congress will see legislation this year that would raise the H-1B cap, according to interviews with people in industry and labor groups. H-1B supporters, such as Jeff Lande, a senior vice president at the Information Technology Association of America, an Arlington, Va.-based lobbying group, doesn't believe Democratic control of Congress will stymie the ITAA's pro-visa efforts; he pointed to last year's bipartisan Senate support for an H-1B increase.

But taking office Thursday are some outspoken opponents of the H-1B visa program, including U.S. Sen. Jim Webb (D-Va.). In a statement for Policy Soup, the blog of the Fairfax County, Va., 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."

With Democrats in charge, anti-offshoring legislation efforts could find new life. For instance, in the House and Senate last year, Democrats -- including Sen. John Kerry (D-Mass.) -- introduced the Call Center Consumer's Right to Know Act of 2006. The legislation, which was never passed by either chamber, required call center employees to disclose their physical location at the beginning of the call, something its legislative backers hoped would prompt companies to think twice before offshoring call centers.

But H-1B visas will likely remain the focal point of debate, and opponents intend to seek changes in how the program is operated.

"The system is worthless," said Ron Hira, vice president for career activities at the Institute of Electrical and Electronics Engineers-USA. "The only thing protecting the workforce right now is the cap, and there is almost nothing protecting the foreign workers from being exploited."

For instance, employers who hire workers with H-1B visas must attest that they will pay workers the prevailing wage for the job. The employer includes the prevailing wage data in the labor condition applications (LCA) that go to the U.S. Department of Labor. But the Labor Department's role in checking the LCA is limited by law. It looks for errors and omissions electronically, but it doesn't have the ability to randomly audit companies to ensure compliance with wage laws and can undertake investigations only in response to a complaint.

In a report released in June, the U.S. Government Accountability Office (GAO) said the Labor Department's LCA electronic review process also made mistakes. It found 3,229 applications from companies using H-1B that reported they were paying wages below the prevailing wage.

The GAO's finding meant "that potentially 3,000 jobs were given to foreigners who are paid less than Americans for the same job," U.S. Rep. John Hostettler (R-Ind.) said at a hearing by the U.S. House Subcommittee on Immigration, which released the GAO report. Hostettler, who chaired that committee, lost his re-election bid last year.

This story, "A new H-1B fight looms with the Democratic Congress" was originally published by Computerworld.

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