Immigration matters / David B. PalinskyThe H-1B program: Mend it, don't end it

Published 9 September 2008

Any required labor-market test must facilitate extraordinary alacrity; delays of years, months, or even weeks are unacceptable; similarly, H-1B workers should be paid the same wage as their U.S. counterparts: The H-1B program should not be a means by which “cheap foreign labor” is imported

This is the first installment of my column on the legal aspects of immigration issues. In my column I will address legal questions pertaining to immigration, with emphasis on business-related immigration, employment-based immigration, and similar matters. Readers may send me questions on topics and issues which are of interest to them and their businesses. I will post some of these questions, and my answers to them, in the column.

Regular readers of the  HS Daily Wire are well aware of the limited number of H-1B visas available to U.S. employers seeking to hire “Specialty Workers” for positions requiring a bachelor’s degree or higher (see, for example, HS Daily Wire 03/17/08, 03/31/08).

On 10 April 2008, U.S. Citizenship and Immigration Services (USCIS) announced that a preliminary count indicated that 163,000 H-1B petitions were submitted during the filing period of 1 April  through 7 April. Of these 163,000 petitions, 31,200 were seeking classification pursuant to the “advanced degree” exemption (an extra 20,000 visas are allotted for those with a master’s degree or higher — but only if the degrees are granted by an institution of higher education in the United States). For FY2009, the period for which the visas are being sought, Congress has imposed a cap of 65,000 regular H-1B visas and 20,000 advanced degree exempt H-1Bs. USCIS will now conduct a “computer-generated random selection process” (that is, a lottery) beginning with the selection of the 20,000 petitions under the advance degree exemption. Advanced Degree petitions not selected in the initial lottery will join the random selection process for the 65,000 “regular” H-1B visas.

Many in corporate America are dismayed by the “random selection process.” The solution most often advocated to the limited number of H-1B visas is a steep increase in the number of visas allotted each year or a removal of the cap entirely. Increasing the H-1B cap — and the H-1B program in its entirety — is not without its critics. Some of the arguments for maintaining, restricting, and even eliminating the H-1B program are compelling on their face, but when examined more closely they reveal a pattern of misunderstanding and, occasionally, outright deception.One of the most vocal  opponents of the H-1B