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Chris Musillo on Nurse and Allied Health Immigration

H-1 CAP MOVES SLOWLY

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by Chris Musillo


The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 8,000 H-1B cap-subject Petitions have been receipted by USCIS. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade. The USCIS has receipted in about 6,000 Masters Cap H-1B Petitions.


To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there was about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.


Many healthcare professions ordinarily qualify for H-1B status, including Physical TherapistsOccupational TherapistsSpeech Language Therapists, and someRegistered Nursing positions.


For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker's wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.


Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

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Comments

  1. Vincenzo's Avatar
    "For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker's wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy."

    That's a ridiculous argument. If there aren't any jobs, no one is going to be hired, H-1B or not. Same holds if there are rather few jobs, etc.

    Say there are two restaurants, a nice one and a dive. If the economy declines, BOTH restaurants will lose customers.
  2. Chris Musillo's Avatar
    Vincenzo:

    I agree US employers are not hiring anyone -- US workers or H-1B workers.

    But if H-1B workers were used to drive down wages doesn't it stand to reason that US employers would fire US workers and hire cheaper H-1Bs even if the economy is weak?

    Why wouldn't US employers do that if H-1B workers worked for materially cheaper wages?
  3. Vincenzo's Avatar
    I suppose it has something to do with their wanting to avoid becoming an "H-1B dependent employer". If they do, they cannot hire H-1Bs if they are laying off Americans.

    A 2002 legal proceeding was brought against Sun Microsystems by a U.S. worker who complained that he was laid off while Sun retained H-1Bs in the same job category (Santiglia v. Sun Microsystems, U.S. Dept. of Labor, Office of Administrative Law Judges, Case No.: No. 2003-LCA-2). Sun freely admitted to laying off Americans while retaining H-1Bs in the same jobs, but pointed out that since it is not considered an H-1B-dependent employer, it was free to take such action. This is in stark contrast to the assurance Sun gave in its U.S. Senate testimony that it only employs H-1Bs as a last resort, i.e. if no qualified Americans are available.
  4. Chris Musillo's Avatar
    Hi Vincenzo,

    I'm sure that fear of the H-1B dependency rule is a concern, but still very few companies are even close to the 15% requirement for H-1B dependency (companies whose workforce is made up of 15% H-1Bs are subject to additional H-1B dependency rules). So I don't think that this is a huge factor.

    I agree with you when you imply that these employers are unwilling to break the law with respect to H-1B dependency. But if that is the case isn't it safe to assume that these companies are also unwilling to break the "prevailing wage" regulation?

    Also, I'm familiar with the Sun case that you cite. Indeed, I had dinner at Roxie Bacon's house right around the time that the case was being prepared and decided. The laid-off worker (who only had worked for Sun for about 4 months) made many allegations but the final DOL opinion found that virtually all of the allegations were groundless. See: http://www.corpimmigration.us/documents/lup_1.pdf

    In that opinion, the court actually found that Sun paid the H-1B workers the greater of actual or prevailing wage. This means that US workers were not undercut, which is essentially what I'm saying.

    I want to reiterate my position: I agree that there are some H-1B employers who abuse the H-1B system, but it is far less than the public believes. My opinion is based on the fact that H-1B usage by US employers would not materially decrease in a shrinking economy. Since H-1B usage has collapsed, I think that the objective opinion is that the abuse is not prevalent.
  5. Vincenzo's Avatar
    This will be my last post. I realized that I'm not going to win any hearts and minds on an immigration lawyer's blog. And getting scrappy with a lawyer is probably not advisable.

    Regarding your prevailing wage comment:
    Even former software industry entrepreneur CEO Vivek Wadhwa (founder of Relativity Technologies) has confessed ( http://www.american.com/archive/2008/july-august-magazine-contents/america2019s-other-immigration-crisis ), "I know from my experience as a tech CEO that H-1Bs are cheaper than domestic hires. Technically, these workers are supposed to be paid a 'prevailing wage', but this mechanism is riddled with loopholes."

    Wadhwa has also stated, "I was one of the first [CEOs] to use H-1B visas to bring workers to the U.S.A. Why did I do that? Because it was cheaper." ( http://www.cio.co.uk/article/527/the-next-wave-of-globalisation-offshoring-rd-to-india-and-china/?print&?intcmp=ROSATB2 )

    Even Rep. Zoe Lofgren, the most strident advocate of the H-1B program Congress has ever had, now realizes that H-1B is used for cheap labor, in full compliance with the law (http://www.computerworld.com/s/article/9215405/H_1B_pay_and_its_impact_on_U.S._workers_is_aired_by_Congress). She says the program is undercutting American workers:

    "U.S. Rep. Zoe Lofgren, a Democrat whose Congressional district includes Silicon Valley, framed the wage issue at the hearing, sharing the response to her request for some wage numbers from the U.S. Department of Labor.

    "Lofgren said that the average wage for computer systems analysts in her district is $92,000, but the U.S. government prevailing wage rate for H-1B workers in the same job currently stands at $52,000, or $40,000 less.

    "'Small wonder there's a problem here,' said Lofgren. 'We can't have people coming in and undercutting the American educated workforce.'"
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