The H-1B program: Mend it, don't end it

a “professional” position - defined as one requiring a minimum of a bachelor’s degree as is the case with H-1B “Specialty Occupations” — an employer must:

  1. Place a Job Order with a State Workforce Agency (SWA) for thirty days;
  2. Place two Sunday print advertisements in a newspaper of general circulation in the geographic area of proposed employment in the period 30-180 days prior to filing the labor certification application (though employers in some circumstances are permitted to substitute one advertisement in an appropriate national journal for one Sunday print ad); and,
  3. Utilize at least three of the following ten other types of recruitment methods;
  • job fairs;
  • posting on the employer’s Web site;
  • posting on a job search website;
  • on-campus recruiting;
  • trade or professional organizations;
  • private employment firms;
  • employee referral programs with incentives;
  • campus placement offices;
  • local and ethnic newspapers; and,
  • radio and television ads.

Under the old labor market test, an employer could be compelled to wait years to determine whether or not there were U.S. workers qualified and willing to accept the proposed employment. Under the existing system, employers obligations are both time consuming and terribly expensive.

Moreover, an 18 July  2007, Information Week article entitled “U.S. Tech Employment Hits Its Highest Point in Seven Years” indicated that that U.S. information technologies (IT) employment is up to nearly 3.6 million and that the unemployment rate for IT professionals has fallen to as little as 2 percent.

Additionally, existing labor market tests defeat the potential employment of a non-U.S. worker if even one responding U.S. candidate satisfies the minimum educational and experiential requirements for the job. That is, a U.S. employer is not at liberty to hire “the most qualified applicant.” The labor market test is failed if anyone in the geographic area of proposed employment has the basic degree and experience required to perform the job.

If a labor market test is even necessary for an employer seeking  temporarily to employ an H-1B worker, clearly a better method must be put into place. If employers are to be required to determine whether U.S. workers are available for the proposed position such a determination must be made with rapidity. Delays of months or years do not allow U.S. employers to compete. Similarly, U.S. employers must be permitted to select the most qualified candidate for the position not any respondent satisfying the minimum requirements. Arguably, corporate employers have a fiduciary duty to their stockholders to recruit and retain the most qualified employees available.

Another criticism of the H-1B