Another H-1B battle coming?

Backers of guest worker visas say more are needed, but critics oppose a higher cap and call for more worker safeguards.

As the ink on a new law expanding the H-1B visa program begins to dry, another battle is already brewing about how many new foreign skilled workers, including computer professionals, should be allowed to work in the United States on the visas--and under what terms.

Critics of the H-1B program oppose raising the annual cap from its current level of 65,000. Last month, President Bush approved visa program changes, including an exemption to the cap for up to 20,000 foreigners earning graduate degrees at U.S. schools.

This new exemption comes on top of existing exemptions for institutions of higher education, nonprofit research organizations and governmental research organizations. For fiscal years 2000 to 2003, the number of new visas exempt from the annual cap averaged nearly 28,000. (Information about fiscal year 2004 was not yet available.)


What's new:
Just weeks after the H-1B visa program was expanded, a battle is brewing over how many new foreign skilled workers should be allowed to work in the United Sates on the visas--and under what terms.

Bottom line:
Backers of the guest worker visas say the annual cap of 65,000 is too low, having been reached the first day of this fiscal year. But critics oppose a higher cap as harmful to U.S. workers and call for more worker safeguards.

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Cap exemptions could translate into more than 40,000 additional foreign workers this year, said Vin O'Neill, legislative representative for the U.S. wing of the Institute of Electrical and Electronics Engineers professional group.

The cap is intended to provide a safeguard, but it's losing its meaning, O'Neill argues. "The greater the supply, the more leverage the employer has to drive down wages."

Critics also complain that the revamped visa program fails in other ways to adequately protect workers. But H-1B defenders point to new measures designed to benefit the American work force. Backers also say exceptions to the cap are needed and that if anything, the cap should be raised or eliminated. They note that this year's visa ceiling was reached on the very first day of the federal government's fiscal year, Oct. 1.

"We're still going to run into cap problems," said Harris Miller, president of the Information Technology Association of America trade group. "I've never believed the cap was necessary or appropriate."

A ticket to controversy
H-1B visas allow skilled foreign workers to come into the country for up to six years. Thirty-nine percent of visa petitions approved in 2003 were for workers in computer-related occupations, with nearly 37 percent of all approvals that year for workers born in India.

The annual cap, which primarily applies to applications for initial employment, has fluctuated over the years. Congress raised the cap from 65,000 to 115,000 in 2000. It then raised it to 195,000 for 2001 through 2003. When the cap fell back to 65,000 in 2004, employers hit the visa limit less than halfway through the fiscal year.

H-1B visas have long been a flashpoint of controversy in the tech industry. Critics have blasted the H-1B program as undermining U.S. workers, being ripe for abuse and fueling the shift of skilled work overseas. Industry leaders have said the visas serve instead as a brake on offshoring, defending them as a means to fill shortages and give U.S. companies access to international talent as they compete globally.

Recent changes to the H-1B program and to the also-controversial L-1 visa program were part of a catch-all bill signed into law by President Bush in December.

Bobby Chung, an immigration attorney based in Southern California, said it was quite possible that all 20,000 of the new visas for foreigners with graduate degrees from U.S. schools will be taken--and likely that the number of other exempt new visas will be similar to the 28,000

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