H-1B Visas In Danger?

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) has announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.

The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers.  Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

Commentary:

Will this have a chilling effect on immigration in the United States? I will give a basic definition of what it means to be an “H-1B dependent employer”:
Companies deemed to be “dependent employers” or “willful violators” have special attestation requirements including that they have made good faith efforts to recruit U.S. workers.

Many H-1B employers face pressing demands, both for their time and on their budgets, for filling vacancies. One of the advantages to the H-1B program was that an employer that needs to rapidly fill a position, would not have to recruit U.S. workers, assuming the company is not an H-1B dependent employer.  If H-1B visa numbers were available, the company could then fill the position rapidly with a trained foreign professional.  This was good both for the company and for the economy in aggregate.  A company receiving TARP funding may not have the resources to recruit U.S. workers.  Given that H-1B potential applicants have specialized knowledge in their fields, it may be very difficult or much more expensive to find U.S. workers with these skills.  The Los Angeles Times on April 1, 2009, posted an article related to this subject.  The article references a hospital administrator in the Imperial Valley.  This administrator stated that while he was waiting for more visas for nurses, he had to hire nurses from other states.  These nurses were commanding twice the pay of foreign hires.  H-1B visa holders, as a reminder, must make the prevailing wage for their positions.  The U.S. workers in this situation, were commanding wages significantly higher than what the government sets as prevailing wage for the position.

One also has to consider the number of people affected by this measure.  The numerical limitation on H-1B petitions for fiscal year 2010 is a maximum of 85,000.  85,000 workers is a very small percentage of our economy.  This legislation affects very few employees in the United States.  However, those affected have specialized knowledge in their individual fields and make important contributions to the American economy. Can the United States afford to lose out on these valuable employees?