The H-1B program: Mend it, don't end it
program is Ron Hira, an assistant professor of public policy at the Rochester Institute of Technology. Hira, though, cannot be regarded as an objective, disinterested academic: He is the former chairman of the Career and Workforce Policy Committee at the Institute of Electrical and Electronics Engineers (USA) — a labor union-type organization the stated goal of which is “to protect and create jobs for the IEEE’s 235,000 U.S. members and all U.S. electrical, electronics and computer engineers.”
While traveling widely varying paths, Hira and I do arrive at similar conclusions with regard to the H-1B program. The existing system is broken and desperately in need of repair. Hira argues that, “[r]ather than preventing the outsourcing of jobs, the H-1B program acts in just the opposite way, by accelerating the outsourcing of high-wage, high-skill jobs to low-cost countries.” In a briefing paper entitled “Outsourcing America’s Technology and Knowledge Jobs,” published by the Economic Policy Institute (see the organization’s “Agenda for Shared Prosperity” at the Economic Policy Institute’s Web site), Hira identifies three fundamental design flaws” in the H-1B program:
- No labor market test;
- Prevailing wage is not market wage; and,
- Deficient oversight.
I wiil examine each of these criticisms in turn.
Hira states that, “the labor market test flaw creates and incentive for employers to prefer foreign workers to American ones, and in some cases to actively displace American workers with H-1Bs.” He is correct that neither the Immigration and Nationality Act (INA) nor the Code of Federal Regulations (CFR) requires potential H-1B employers to test the domestic labor market insuring no U.S. workers are qualified and willing to assume the proposed H-1B employment. Hira, however, does not address the glaring failures of past and present “labor market tests,” nor does he propose an adequate test of his own. Prior to the 28 March 2005 enactment of the Program Electronic Management Review (PERM) labor certification program, a labor market test for available U.S. workers could be initiated as long as seven years after the initial filing of the labor certification application ( note that a labor certification application is often the first step in seeking employment-based lawful permanent residence, that is, a Green Card, and not an H-1B visa, but is referred to here as one of the only examples of a labor market test). Under PERM, the labor market test must be conducted in a 180-day window immediately preceding the filing of the labor certification application. For
