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

U.S. workers;

  • paying H-1B workers “market wages”; and,
  • random audits of H-1B employers.

    • Though we certainly do not travel the same road in reaching a similar destination, none of these suggestions is entirely outside the realm of reasonableness.

    Any required labor market test, however, must facilitate extraordinary alacrity. Delays of years, months, or even weeks are unacceptable. Mechanisms must be established that enable employers to determine whether or not U.S. workers are available for the position presently. Furthermore, in the spirit of compromise and as a matter of competitive economic necessity, employers must be permitted to hire the most qualified candidate and not fail a labor market test on the basis that some, albeit minimally qualified candidate can be located.

    Similarly, H-1B workers should be paid, as is already contemplated by the regulation, the same wage as their U.S. counterparts. The H-1B program should not be a means by which “cheap foreign labor” is imported. Determining the appropriate wage, however, must be done reasonably and efficiently without delay. One of the problems with SWA prevailing wage determinations is that they did not take into account sufficient variable and often resulted in wage figures that were ridiculously high given the job requirements.

    Additionally, random audits of H-1B employers to insure compliance are not unreasonable if the audits if the audits are conducted in a reasonable manner. Employers that play by the rules should not be adversely affected by properly conducted audits and employers attempting to circumvent the letter and spirit of the H-1B program would fear a greater likelihood of detection and punishment.

    Finally, I would go so far as to suggest the following: Title 8 Code of Federal Regulations §212(h)(1)(F) should be revoked. This regulatory provision allows “agents” to act as H-1B petitioners. According to Hira, these firms represent the top 11 and 15 of the top 20 H-1B requestors. These “agents,” in turn, place the H-1B workers at various job sites with various surrogate employers whom are not bound by any LCA attestations. The abolition of “agents” as H-1B employer/petitioners would greatly facilitate LCA enforcement and compliance. It does not seem unreasonable that an H-1B employee actually render services on behalf of the H-1B petitioning employer and not some third party.

    David Palinsky, an attorney, specializes in cases involving employment-based immigration. In particular, Palinsky specializes in immigrant (permanent) and nonimmigrant (temporary) visas for the homeland security, hi-tech, and services sectors. You may contact Palinsky directly at dpalinsky@davidpalinsky.com; for general information, please e-mail a description of your situation to info@davidpalinsky.com.