FAIR Legislative Update March 24, 2008

March 24, 2008 

In this update:

• Congress Contemplates Increasing Number of H-1B Guest Workers
• As Deadline Looms, Some States Balk at REAL ID
• "Speak English" Sign Post at Philly Cheesesteak Shop Not Discriminatory

Congress Contemplates Increasing Number of H-1B Guest Workers

Just days after Microsoft Chairman Bill Gates asked Congress to increase the caps for so-called "high-tech" guest worker visas, both Democrats and Republicans introduced legislation to do just that. On March 13, Representative Gabrielle Giffords (D-AZ) introduced the Innovation Employment Act (H.R. 5630). Among other things, this legislation would:

• Increase the annual number of H-1B visas from 65,000 to 130,000 starting in FY 2009, and up to 180,000 by FY 2010;
• Exempt aliens with advanced U.S. degrees in math, science or engineering from the H-1B cap (currently an additional 20,000 visas are set aside for such aliens);
• Set aside 20,000 visas (in addition to the cap) for individuals with advanced degrees in math, science or engineering from foreign universities;
• Limit the number of H-1B guest workers to no more than 50 percent of the employer's U.S. workforce; and
• Prohibit employers from advertising jobs in a manner that indicates the jobs are only available to H-1B guest workers or that H-1B workers are preferred.

Last week, Representative Giffords sent a letter to House Speaker Nancy Pelosi, requesting her to bring H.R. 5630 to the House floor. (Congress Now, March 18 2008)

Republican Leadership also has its own H-1B legislation in the works. On March 14, Representative Lamar Smith (R-TX), Ranking Member of the House Judiciary Committee introduced the SUSTAIN Act (H.R. 5642). The SUSTAIN Act would raise the H-1B visa cap to 195,000 in fiscal years 2008 and 2009 only. Chief Deputy Republican Whip Eric Cantor (R-VA), who co-sponsored the legislation, argued that Congress should be willing to "decouple" the foreign guest worker issue from other aspects of the immigration debate. (Congress Daily, March 20, 2000) H.R. 5642, not even two pages in length, does not contain any of the other provisions found in Representative Gifford's bill.

The H-1B visa, created in 1990 as a derivative of an existing professional worker program (H visa), allows U.S. companies to fill specialty occupations requiring a college degree or equivalent professional experience. H-1B visas are valid for up to three years, can be renewed for an additional three years, and may serve as a stepping stone to a green card. While it is possible for H-1B workers to switch employers, changing employment is unlikely if the employee is expecting the employer to sponsor a green card. (John Miano, Low Salaries for Low Skills: Wages and Skill Levels for H-1B Computer Workers, 2005, Center for Immigration Studies, April 2007)

Since 1990, however, mounting evidence indicates that the program is not being used as intended. This month, Business Week reported that data from U.S. Citizenship and Immigration Services (USCIS) indicate that offshore outsourcing firms, particularly from India, are the largest recipients of H-1B visas. In fact, in 2007 Indian outsourcing companies received 80 percent of the H-1B visa petitions approved for the top ten employers participating in the program. Overall, six of the top 10 visa recipients in 2007 are based in India; two others are headquartered in the U.S., but have most of their operations in India.

Using the H-1B visa program, these outsourcing companies bring foreign workers into the U.S. to complement their outsourcing services abroad. After a year or two in the U.S., the employers send the H-1B workers back home to compete with U.S. workers in tech support and other service industries. (BusinessWeek, March 6, 2008) One of the reasons H-1B visas may be used in such a way is that employers do not have to establish that there is a shortage of U.S. workers for the position when applying for an H-1B visa. (See Gregory Siskind, The ABC's of Immigration: The H-1B Visa )

Several studies have demonstrated that the skill level of computer workers receiving H-1B visas is questionable. For example, a 2007 report issued by the Center for Immigration Studies (CIS) showed that employers classified over 50 percent of their H-1B recipients as "entry" level with only "a basic understanding of the occupation." The study also found that "H-1B wages averaged $12,000 below the median U.S. wage based on occupation and location." According to the study, this wage disparity suggests that either the H-1B program is being used primarily to import relatively low-skilled, entry-level workers, or that employers are lying about skill levels in order to suppress their wages. (John Miano, Low Salaries for Low Skills: Wages and Skill Levels for H-1B Computer Workers, 2005, Center for Immigration Studies, April 2007) Other studies have revealed an even greater depression of wages for engineers (see H-1B Visas: Harming American Workers )

In addition, USCIS data demonstrates that the agency often issues H-1B visas to employers that are not "high-tech". For example, when USCIS recently released the list of employers using H-1B visas in FY 2007, it showed that public school systems across the country employ H-1B guest workers. In fact, in FY2007, the Prince George's County School District employed more H-1B guest workers than Motorola, and the Baltimore City School System used more H-1B guest workers than IBM, with the New York City Public School system not far behind. To see the full list of H-1B employers in FY 2007, click here.

Meanwhile, on Wednesday, USCIS announced it is issuing a new (interim) rule that will change how H-1B visa applications may be filed. Under the new rule, employers will be allowed to file only one H-1B petition per prospective employee. This step was taken to stop employers from trying to game the application process by filing multiple petitions. Now, an employer filing multiple petitions for the same employee will have the multiple or duplicative petitions revoked and will forfeit the $320 filing fee for each petition. (News Release: USCIS Announces Interim Rule on H-1B Visas, March 19, 2008)

The push to allow employers to import more H-1B guest workers illustrates merely one way Congress is listening to special interests. Just three weeks ago, House Leadership began negotiating legislation promoted by Congressman Joe Baca (D-CA), Chairman of the Congressional Hispanic Caucus, that would grant 5-year amnesty visas to the 12-20 million illegal aliens currently in the country. And not two weeks ago, Congressman Bart Stupak (D-MI) began efforts to bring legislation to the House floor that would allow employers to import more unskilled H-2B guest workers. Now, Capitol Hill newspapers are reporting that House Leadership-eager to address immigration in a "comprehensive" manner-is considering a package that would contain all of these elements.

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As Deadline Looms, Some States Balk at REAL ID

March 31 is the deadline for states to seek extensions from Homeland Security to comply with the REAL ID Act. After this date, the residents of states that have not made some effort to meet the statutory requirements of REAL ID will be unable to use their driver's licenses to board aircraft or to enter federal buildings. Nonetheless, it appears that a handful of states may miss the deadline. Maine, Montana and South Carolina have all refused to comply with the act and have made no effort to seek an extension. It is not clear whether the governors of those states will be able to obtain an extension in any case, given that they, along with New Hampshire, Oklahoma and Washington, have all enacted legislation barring them from complying with the REAL ID Act. Some states, such as New Hampshire, are contemplating filing for an extension even though they do not intend to comply with the Act. However, according to Homeland Security spokesperson Amy Kudwa, "An extension request is not an extension simply for more time, it's an extension to move toward compliance. So it needs to be a good faith request for extension." (Associated Press, March 20, 2008)

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"Speak English" Signs Posted at Philly Cheesesteak Shop Not Discriminatory

By a 2-1 vote, the Philadelphia Commission on Human Relations ruled Wednesday that two signs telling customers at Geno's Steaks to order in English did not run afoul of a local Fair Practices Ordinance. The owner of the cheesesteak shop, Joe Vento, posted the signs, which read "This is America: WHEN ORDERING PLEASE SPEAK ENGLISH," because of his concerns about an increase in patrons who could not order in the language. The Commission found that because Gino's did not enforce the policy by refusing service, however, it did not discriminate against patrons. It avoided the question of whether refusing service to non-English speakers would have been discrimination. (Associated Press, March 19, 2008)

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