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In the wake of the unprecedented number of skilled foreign workers who will be turned away from America because of the shortage of H-1B visas caused by the USCIS's receipt of almost 233,000 cap subject petitions this year, employers, skilled workers themselves, lawyers, and immigration advocates all over America are asking the same question. Carl Shusterman puts it succinctly in the title of his April 17 Immigration Daily post:
H-1B Cap: Congress Needs to Do its Job
But why can't Congress do its job in raising the H-1B cap? This year's visa cap train wreck may be unprecedented, but it was hardly unforeseen.
While this year there were almost four times as many H-1B petitions as the annual 65,000 visas for workers who do not have a US master degree. last year there were almost three times as many. That also qualifies as a major train wreck by any standard.
Nor was last year exactly the first in which the annual H-1B quotas were over-subscribed. This is a problem which Congress saw coming more than a decade ago and has stubbornly refused to do anything about ever since.
The question everyone is asking is - why? Carl Shusterman points to alleged abuses in the H-B program, at least as identified by Senate Judiciary Committee Chairman Charles Grassley, a long time bitter foe of the entire H-1B program and opponent of other work visas as well.
Carl Shusterman speaks for every reasonable H-1B observer when he writes:
"Many of their concerns are valid. When a few H-1B companies use H-1B workers to displace US workers, I think we can all agree that this is wrong, and that the law needs to be changed to prevent this from happening."
Nor would anyone who genuinely cares about finding a real solution to the visa shortage dispute Carl Shusterman when he continues:
"But why can't the H-1B cap be raised and loopholes in the law be closed at the same time? That would be a reasonable compromise and Congress is supposed to be adapt at the art of compromise, especially when the H-1B program is so clearly in [our] national interest."
The problem is that, like so much else in immigration today, the H-1B cap issue involves rational considerations only on the surface. But there is a lot else going on underneath.
First, however, it is useful to consider what kind of compromises might be possible with regard to the H-1B cap if Congress were willing to look at this issue rationally.
One such compromise was included in the late, lamented, bipartisan 2013 S.744 Senate immigration reform bill of blessed memory. Essentially, it would have raised the H-1B cap, while at the same time turning at least part of the H-1B program into a labor certification requiring a test of the market for US workers as a pre-condition for issuing an H-1B approval.
This is, arguably, an extremely dangerous road to travel. In all likelihood, it would lead, probably sooner rather than later, into turning the entire H-1B program into another PERM. Imagine what would be left of H-1B if employers had to go through months of expensive recruitment, loaded with technical minefields, and wait many more months to receive the labor certification - or, in many cases, an invitation to wait two years or more for a BALCA decision, just to hire a temporary worker.
That would be the end of the H-1B program.
But, as I have indicated above, the main obstacle to finding a rational compromise on the H-1B issue is not that it is impossible to come up with reasonable solutions, but because of irrational attitudes toward immigration in general which are poisoning the entire H-1B well.
Yes, there are no doubt some abuses in the H-1B program, as there are, unfortunately, in any immigration program. But that is not a reason for gutting H-1B as we know it, any more than it is an excuse for throwing out any other immigration program.
If Senator Grassley and other diehard H-1B opponents were really interested in improving this program, as opposed to killing it, it would not be difficult to find reasonable ways to make whatever changes are needed to reduce the chances of abuse and add even more protections than there already are for the wage levels of US workers, while increasing the annual visa limit at the same time.
Nor, despite the arguments of some, is the executive branch totally helpless to come up with at least some partial solutions to the H-1B visa shortage, as I will discuss in a forthcoming post.
H-1B issues may seem to be light years removed from the issues facing Central American women and their children who are being traumatized and humiliated in our privately run, for-profit, immigration detention system with its 34,000 Congressionally mandated beds, influenced by lobbyists for a handful of well-heeled, influential prison companies that need to lock up as many immigrants as possible to maintain their profits.
H-1B may seem even more removed from the plight of North African refugees who are drowning in their failed attempts to reach European countries that are unwilling to spend a single cent to rescue them - at least according to the Huffington Post reports mentioned in my two-part series: Immigration's Dark Side: Europe and America.
(This series will also discuss the violence and terror directed against immigrants in today's South Africa - it is not only white countries that are engaging in fundamental human rights violations against immigrants.)
But the same xenophobia, paranoia and scapegoating of minorities that are causing so many problems for other immigrants in America and elsewhere are also the main reason why finding a solution to the H-1B cap continues to elude the US Congress. If we ignore this reality, we are just kidding ourselves.
Roger Algase is a New York lawyer and advocate for immigrant rights who has been practicing H-1B and other employment-based and family-based immigration law for more than 30 years. He is a graduate of Harvard College and Harvard Law School.
Roger welcomes questions and comments at email@example.com
Updated 04-18-2015 at 12:14 PM by ImmigrationLawBlogs