AILA Testimony on Need to Increase H-1B Cap

TO THE
SUBCOMMITTEE ON IMMIGRATION AND CLAIMS COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES

ON

THE NEED TO INCREASE THE CAP ON TEMPORARY H-1B PROFESSIONALS

April 21, 1998

The American Immigration Lawyers Association (AILA) commends the Chairman and the Members of the Subcommittee for their initiative in addressing an issue of urgent concern for businesses nationwide, the imminent expiration of the allotment of available visas for temporary foreign professional workers. AILA is an organization of 5200 attorneys throughout the United States. Our members represent thousands of U.S. employers in all sectors of the economy. The issue of temporary foreign professional workers is of utmost concern to AILA because of the vast array of businesses that utilize the H-1B nonimmigrant program to employ foreign nationals in key positions. These businesses’ continued ability to compete would be hurt if they would be unable to continue to employ these individuals.

I. H-1B WORKERS ARE USED THROUGHOUT THE U.S. ECONOMY TO CONTRIBUTE NEEDED SKILLS AND TALENT THAT IS UNAVAILABLE IN THE UNITED STATES

AILA would like to emphasize the importance nationwide of this issue to companies in all sectors of the economy. Our members represent large and small businesses in the manufacturing, services, high-tech, pharmaceutical, biotechnology, and other industries. AILA members also represent colleges, universities, non-profit organizations, institutions and governmental entities. These employers are located throughout the United States, and all of these employers utilize the H-1B category.

This hearing gives us the opportunity to highlight U.S. employers that are using and benefiting from the talents and skills of H-1B workers. For example, a government contractor in Colorado has hired several H-1B engineers with expertise in the decommissioning and decontamination of former nuclear weapons facilities. Their expertise is being used in the clean-up of several Department of Energy facilities that formerly were used in this nation’s nuclear weapons complex. A school in California devoted to working with children with cerebral palsy has used the H-1B category to bring in several teachers from Hungary who have been trained in a special technique called “conductive therapy” that currently is unavailable in the United States. Parents of U.S. children helped by these teachers call their children’s progress “miraculous.” Many of this country’s leading pharmaceutical and biotechnology research companies and institutions hire H-1B scientists to work on projects ranging from cures for cancer and AIDS to developing safer and more effective drug delivery systems and surgical techniques. H-1B physicians provide critical primary care medical services in some of this nation’s most underserved areas, including inner cities and rural communities. Manufacturing companies bring H-1B engineers to this country to introduce and train U.S. workers in technologies and manufacturing techniques currently not yet in use here, including the development of more environmentally-friendly thin-film coating techniques for locking products, and better catalytic converter systems for automobile exhaust, and many other important areas. Of course, H-1B workers also are employed in the computer industry, as well as in many critical computer-related positions in non-high-tech companies. Many of these individuals work on critical projects in the areas of medical databases, solving the infamous Year 2000 problem for local and state governments, and on implementing critical business reengineering software to allow some of America’s largest companies to continue to compete globally.

Far from taking jobs away from U.S. workers, H-1B professionals actually spur job creation in this country, allowing U.S. companies to expand into new areas, both geographically and in terms of new products and services, and fill critical positions upon which many other jobs depend that are filled by Americans.

II. THE CONTINUED AVAILABILITY OF H-1B WORKERS IS ESSENTIAL TO THE GROWTH OF THE U.S. ECONOMY

Thousands of employers, in all sectors of the economy, utilize the H-1B category every day. While we have heard a great deal recently from high-tech companies, the examples previously cited demonstrate that U.S. employers use the H-1B category to hire foreign professionals with rare or unique skills and with the knowledge and/or experience that is needed by these employers to pursue new projects, expand into new markets, update their technology, and/or train their U.S. workers. Of course, the H-1B category also is used to fill positions for which there is a shortage of available U.S. workers. However, whether or not such a shortage exists at any given time in any given industry, there always will be a need for employers to be able to bring into this country specially skilled individuals to fill specific niches in our economy. Furthermore, with the rapid growth of the U.S. economy and the increased expansion of U.S. companies into the global marketplace, the need for these individuals is likely to continue to increase in the near term. Despite all of this country’s efforts and preferences, we will continue into the future to need to utilize the H-1B category to hire foreign professionals, given the global nature of our economy and our need to compete on at least a level playing field.

As stated above, H-1B professionals are employed in many key positions in the United States. If the current cap of 65,000 is reached before the end of this fiscal year, not only will companies facing worker shortages be affected, it could render serious harm to other U.S. employers. Companies will have to put important research projects on hold and delay product introductions and expansion plans. The inability to hire these foreign professionals could hamper employers’ ability to keep a step ahead of foreign competition.

III. PROPOSED CHANGES TO THE H-1B CATEGORY COULD SERIOUSLY IMPAIR ITS USEFULNESS TO U.S. EMPLOYERS

A. H-1B Processing Should Be Speedy and Efficient

While much debate to date has focused on the impending exhaustion of the available H- 1B visas this fiscal year, and obtaining an increase in the cap so that companies can continue to bring in these urgently needed individuals, AILA also is concerned with maintaining the efficiency and timeliness of the H-1B program. One of the great advantages of the H-1B program is that it allows companies who need key individuals to obtain their services within a relatively quick time frame of several weeks. This speed of processing has allowed employers to take advantage of opportunities as they arise, without having to undergo significant administrative processing delays. The trade-off for this timely adjudication is the already substantial protections built into the program to provide notice to and insulate American workers from adverse consequences. However, various ill-advised proposals have come forth that could seriously jeopardize these crucial aspects of the H-1B program.

One proposal would require employers to attest that they have not laid-off any U.S. workers before they can hire an H-1B foreign national. This proposal is a reaction to allegations that employers are laying-off U.S. workers to hire “cheaper” foreign workers as replacements. However, the current H-1B program requires employers to pay H-1B workers the higher of the salary it pays to its U.S. workers in the same occupation and with similar credentials or the average of the salaries paid by area competitors to similar workers. Therefore, if these employers are paying their H-1B workers less than is required under the current program, they are breaking the law and should be punished. However, the vast majority of employers are not breaking the law and are paying foreign workers the salary required by law.

While a layoff attestation may appear reasonable, we oppose this attestation because it would hamper U.S. employers’ ability to react to changing market conditions. Some proposals in this area would have prohibited employers who laid off any workers in any part of the country from hiring H-1B professionals at all. This might mean that a company who laid off mechanical engineers in its defense division could not hire an H- 1B electrical engineer needed in its components division in another area of the country. Such a broad provision would be unworkable. Even if such a provision is not included we still oppose a layoff attestation because, the Department of Labor, which most likely would be entrusted to enforce this provision, has not shown itself capable of making job classification distinctions fine enough to determine whether layoffs even occurred in the same occupations or skill sets. In fact, the DOL recently has developed even broader occupational classifications in its administration of the prevailing wage program, thereby leading to job comparisons of apples with oranges. Specifically, it is as if an apple can be equal to an orange because they’re both fruit.

B. Recruitment Attestations Would Be Onerous and Would Affect the Ability of U.S. Employers to Hire the Cream of Foreign Talent

Another proposal would require employers to attest that they have attempted to recruit U.S. workers before hiring an H-1B worker in a position. Again, while this proposal may sound reasonable on its face, particularly given the current high-tech worker shortage, it would be unworkable in practice for several reasons. Perhaps most importantly is the Department of Labor’s history in administering the recruitment requirements in the permanent labor certification context, the closest comparison to the H-1B program available. Because this process can take two to three years to complete in some areas of the country, employers reasonably believe that any recruitment procedure that the Department would oversee in the H-1B program would create such an administrative burden as to render the program effectively useless. One of the main reasons employers can utilize the H-1B program is because the process is relatively efficient in bringing in needed professionals. Adding a time-consuming recruitment requirement would eliminate this efficiency and cause jobs to go unfilled.

Secondly, not all H-1B workers are hired to fill occupations where there is a shortage of U.S. workers. Multinational companies use the H-1B program to bring in experts in global markets to train and be trained in the United States. Other companies wishing to bring in experts in technologies or processes that are not currently in use in the United States also use the program as well as to bring in individuals with rare or unique skills, knowledge or experience unavailable in the U.S. Since the skills brought by these individuals are unavailable in the United States, requiring companies to recruit in the United States before hiring these individuals would be pointless.

IV. CONCLUSION

These and other new administrative burdens would render the H-1B program useless to U.S. employers, effectively preventing them from utilizing the services of badly-needed foreign professionals. In addition, AILA also would strongly oppose attaching other provisions unrelated to the H-1B program and business immigration to legislation that would raise the current cap on H-1B workers. Provisions such as reprioritizing family immigration have no merit in themselves, change the rules in the middle of the game, violate America’s tradition of family immigration where the primary goal is to reunite families, and fly in the face of future labor market needs. Finally, any such provisions would slow down, if not defeat, any legislative initiative addressing H-1Bs.

In summary, AILA urges this Subcommittee to quickly introduce and mark-up “clean” legislation that will raise the cap on H-1B admissions, without the addition of administrative or legislative provisions that would burden the program or are unrelated to business immigration and would stall, if not defeat, this urgently needed effort.

The American Immigration Lawyers Association (“AILA”) is the national bar association of over 5,000 attorneys and law professors practicing and teaching in the field of immigration law.

AILA member attorneys represent thousands of U.S. businesses and industries that sponsor highly skilled foreign workers seeking to enter the United States on a temporary or – after having proven the unavailability of U.S. workers – permanent basis. AILA members also represent many U.S. families who have applied for permanent residence for their spouses, children and other close relatives to lawfully enter and reside in the United States, reuniting the family. AILA members also represent foreign students, entertainers, athletes and asylum seekers, often on a pro bono basis.

Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its members with continuing legal education, information, professional services, and expertise, through its 35 chapters and over 50 national committees. AILA is an Affiliated Organization of the American Bar Association and is represented in the ABA House of Delegates.

© 1999, American Immigration Lawyers Association