FAQ: The H-1B battle reaches the boiling point again

Senators readying immigration bill with higher visa cap; House already weighing similar measure

Any discussion about the H-1B visa program almost always begins at the boiling point, and that may be more true this year than at any previous time. Last month, in less than a single day, the federal government received far more than enough applications to fill the standard allotment of 65,000 H-1B visas for its next fiscal year. Another 20,000 visas set aside for foreign workers who hold advanced degrees from U.S. universities were also exhausted quickly. And high-tech companies –- the major users of the visas -– are pushing Congress for an increase in the annual cap, which once was as high as 195,000 visas.

Similar efforts over the past few years have failed, and H-1B opponents are continuing to press against any cap hikes. But multiple bills that would raise the cap have again been introduced in both the U.S. House and Senate. Meanwhile, another Senate bill seeks to toughen the visa program's enforcement provisions and give U.S. workers the first crack at technology-related job openings -- and earlier this week, the two sponsors of that measure released government data showing that the top users of H-1B visas are offshore IT services firms based in India.

The following FAQ explains where things stand in the renewed debate over the H-1B program. 

Will the H-1B cap finally be increased this year? That depends on the political process, of course. There appears to be bipartisan support for increasing the cap in both the House and Senate, but the H-1B issue currently is part of a wider debate about immigration reform. A comprehensive reform bill that is being discussed in Senate back channels is expected to include a proposed increase in the standard H-1B cap from the existing 65,000-visa limit to 115,000 visas, with provisions for further increases in subsequent years based on market needs, according to people who are familiar with the ongoing negotiations. The details of the anticipated bill have yet to be made public. But Senate Majority Leader Harry Reid (D-Nev.) has scheduled a vote for next Monday on a procedural motion that would set limits on debate about the bill and start to press the legislation forward.

The Senate has been more sympathetic to the idea of an H-1B cap increase than the House has. As an example, Microsoft Corp. Chairman Bill Gates testified -- as the sole witness at a Senate committee hearing -- that the expected demand for visas this year would leave companies unable "to get H-1B visas for an entire crop of U.S. graduates." But a broad immigration bill called the STRIVE Act of 2007, for Security Through Regularized Immigration and a Vibrant Economy, already has been introduced in the House. The House measure includes a proposal to raise the annual H-1B cap to 115,000 visas at first and to as many as 180,000 visas in the future -- figures that could match what the Senate proposes in its reform bill.  

If the comprehensive immigration reform bills fail, where does that leave the H-1B cap? The fate of an H-1B increase isn't necessarily tied to the broad immigration bills. There are a number of proposals in Congress seeking to hike the visa cap, and there's nothing to stop lawmakers from voting for an increase independent of the wider reform legislation. President Bush has his pen ready: He has repeatedly voiced support for an H-1B cap increase.

What's different about the H-1B debate this year, with the Democrats in charge of Congress? In March, when Reps. Luis Gutierrez (D-Ill.) and Jeff Flake (R-Ariz.) introduced the STRIVE Act, House Speaker Nancy Pelosi (D-Calif.) applauded the move as "a significant step forward," although she didn't mention the H-1B program in her statement of support. In recent years, Republicans faced a lot of pressure from their constituents to toughen immigration laws, and the H-1B issue was subsumed by those considerations. In addition, 2006 was an election year -- not a conducive time for legislators to vote to expand the number of visas made available to foreign workers.

Are the bills that have been introduced in Congress this year any different than the ones it considered last year? There is the H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007, which was proposed by Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa). One of the issues that the bill addresses is the oversight of the H-1B program by the U.S. Department of Labor. Currently, the Labor Department is neutered by law in its ability to investigate H-1B applications and audit employers. For instance, the agency can check visa applications only for "completeness and obvious inaccuracies."

Some high-tech companies have openly advertised in the U.S. for "H-1B only" workers –- excluding Americans from applying for jobs on their own soil. But it was the Summit, N.J.-based Programmers Guild -- not the Labor Department -- that questioned the advertising practice last year and filed a series of discrimination complaints with the Department of Justice. The Durbin-Grassley bill would increase the Labor Department's H-1B enforcement staff and give the agency the ability to proactively audit companies with H-1B workers and to check visa applications for signs of fraud or misrepresentation. Some of those provisions also may appear in the Senate's broader immigration reform bill. 

Why is there a lack of public data about the use of H-1B visas by companies? H-1B visa data isn't a government secret, but it might as well be. The feds have a lot of data on the H-1B program that could help researchers understand how the visas are being used and assess the program's impact on U.S. jobs and wages. But it took a request from Durbin and Grassley to glean some basic data from the U.S. Citizenship and Immigration Services, such as which companies are the largest users of H-1B visas. India-based offshore services provider Infosys Technologies Ltd. topped the list with nearly 5,000 visas last year, according to the data that Durbin and Grassley released on Monday. Infosys was followed by two other Indian companies, Wipro Ltd. and Tata Consultancy Services Ltd.

What impact did the release of the data by Grassley and Durbin have? Media outlets in India have published statements from that country's leading IT industry group, the National Association of Software and Service Companies, calling for an increase in the H-1B cap and describing the debate over the visa program as a trade issue.

But, at heart, this is not an issue of India versus the U.S. The India-based offshore firms are in competition with U.S.-based IT services providers, and all of the companies are using overseas workers to cut IT costs. For instance, IBM India said recently that it has about 53,000 employees. That represents 15% of IBM's total workforce and makes the U.S. company one of the largest IT employers in India. And it illustrates that what this issue is really about is the globalization of the IT industry.

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Copyright © 2007 IDG Communications, Inc.

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