We Need Smarter, Not Fewer, H-1B Visas

The new Grassley-Durbin bill would weaken the economy. Here's how to let the H-1B visa program strengthen the U.S. instead

By Vivek Wadhwa

Like watching the Nationals play and the cherry trees blossom, assailing the rights of immigrant workers has become a rite of spring for powerful players in the U.S. Senate. For the third year running, Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) have taken aim at immigrant labor. On Ap. 23, Grassley and Durbin reintroduced the H-1B and L-1 Visa Fraud & Abuse Prevention Act of 2009, which puts new restrictions on the widely used H-1B and L-1 visa programs that respectively let skilled foreign workers and foreign employees of American corporations work in the U.S. Earlier versions of the proposed legislation didn't pass.

The senators say the bill merely seeks to reduce abuses of programs that, according to critics, let technology companies hire cheap immigrant labor to replace more expensive U.S. citizens. The bill's backers say it doesn't seek to reduce the number of visas issued or impede proper use of H-1Bs and L-1s. Companies will still be able to freely use these visas to obtain workers with key skill sets that are lacking or hard to find at home.

But as with all political undertakings, the devil is in the details of this visa legislation. The bill mandates that any employer seeking to hire workers using the H-1B program must swear that it has already made a "good faith" effort to hire U.S. citizens and that the new H-1B visa employee will not displace a U.S. citizen. This mandate, under current law, is required only of heavy H-1B users. Additionally, the new bill requires that the Labor Dept. must perform random audits every year of at least 1% of companies using the H-1B program. Lastly, the reintroduced bill requires employers to advertise a job opening on a Labor Dept. Web site for at least 30 days prior to requesting an H-1B visa to fill a position.

This collection of rules constitutes a gradual clampdown on the H-1B program that will further discourage companies from seeking new H-1B hires. For large technology companies like Microsoft (MSFT), Google (GOOG), and IBM (IBM), where employees are constantly coming and going, proving definitively that an H-1B hire is not displacing a U.S. citizen is next to impossible. And what exactly is a "good faith" effort to hire a U.S. citizen?

exactly the wrong effect

Yet should the new bill become law, violations of either of these provisions could constitute grounds not only for government enforcement but also for the filing of lawsuits claiming H-1B abuse and employment discrimination. The random-audit provision is a business nightmare as well. The potential of an invasive audit, while remote under the proposed law, serves as further discouragement to companies already spooked by the same xenophobic environment that has led to public castigation of big banks for hiring smart foreign MBAs on H-1Bs.

I have a suggestion for Grassley and Durbin. Pass a bill to deregulate the H-1B visa program, and eliminate the restrictions that make it difficult for H-1B holders to travel, switch jobs, or get promoted. Create a fast-track status to U.S. citizenship for H-1B holders providing they launch a company that employs more than 10 American workers within three years. And grant residency to the nearly 1 million H-1B holders and their families waiting in limbo to obtain permanent residency. Under the current system, that wait can last a decade—with no guaranteed outcome.

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