A guide to H-1B, green card reform

There is increasing activity on high-skill visa reform in Congress. Here's what to watch for

Unlike with the debt limit debate, there is bipartisan interest in Congress in reforming high-skill immigration. New legislation is on its way, and here's what to watch for.

What bills have been introduced or are coming?

In the House, the most important Democratic initiative is from Zoe Lofgren (D-Calif.), whose district includes Silicon Valley. Her bill will make green cards available to students who earn advanced degrees in science, technology, engineering and mathematics, so called STEM graduates. However, her bill isn't expected to go anywhere.

The person to watch instead is U.S. Rep., Lamar Smith (R-Texas), who heads the House Judiciary Committee. Smith appears interested in some limited immigration changes expected in a bill from Rep. Jason Chaffetz (R-Utah). This bill, which is due "soon," is expected to call for elimination of the per-country limits on green cards.

The U.S. has a cap of 140,000 employment-based visas a year. Spouses and children of the workers are counted against that cap. The U.S. limits the number of green cards per country to no more than 7 percent of the total available visas. In India, where there is a big demand for green cards, the wait for one can be as long as 10 years.

If the per country cap is eliminated, green card applicants who have been waiting the longest may see their expected waiting times reduced. But green card applicants from countries with relatively short wait times may have to wait longer. Tech companies may support per country cap elimination, since applicants from China and India stand to gain the most. The tech firms will take what they can get, but may hope for something better out of the Senate.

U.S. Sen. Charles Schumer (D-NY), who heads the Senate subcommittee on immigration, said this week that he intends to introduce legislation that, similar to Lofgren's bill, will also staple green cards to a STEM graduate's diploma. He is also promising H-1B reform in his bill.

Overall outlook: If Schumer follows through and the House Judiciary Committee also produces legislation, a limited, targeted immigration reform bill could emerge. Both parties have strong reasons to please the tech industry.

What's the reservation against Green Card 'staple' bills?

Senator Charles Grassley (R-Iowa) argued at the Senate's hearing this week on high-skill immigration reform that legislation which automatically gives a green card to foreign graduates has the potential of turning universities into "visa mills."

How can Congress raise the H-1B cap without raising the cap?

There has been no proposal to specifically raise the H-1B cap, but Smith has pitched the idea of limiting the cap to tech fields.

The U.S. issues 85,000 H-1B visas annually, 20,000 of which are reserved for advanced degree holders. The H-1B is available to people with a wide range of skills, including writers, accountants, lawyers, clergy, librarians, musicians and fashion models.

Smith has suggested removing some of the non-tech categories from the H-1B visa, which may reduce competition for the visa should demand pick-up. As of this month, the U.S. has received nearly 35,000 petitions.

True or false: Does H-1B law require U.S. workers be hired first?

In the H-1B debate, there is an often repeated belief that U.S. workers must be hired before foreign workers. It's false.

At this week's Senate hearing on high-skills immigration, U.S. Sen. John Cornyn (R-Texas), the ranking member of the immigration committee, said: "We should assure every American and all Americans ... we will never hire ... a foreign national under an H-1B program where there is a qualified American ready, willing and able to do that job -- and in fact that is illegal."

Grassley, who is also on the committee, pointed out later in that hearing that "employers are not required to demonstrate that qualified American workers are in fact available."

It's not illegal for an employer to bypass U.S. workers in hiring, unless it is an H-1B-dependent firm, according to the U.S. Dept. of Labor. An H-1B-dependent employer is a designation that applies at certain employment thresholds, the largest being for firms that have 51 or more full-time workers of whom 15 percent are on H-1B visas. These firms must show that they have made a good faith effort to hire an American worker.

Grassley and Sen. Dick Durbin (D-Ill) have proposed requiring U.S. companies to give U.S. worker preference in hiring in all instances.

Did the U.S. just tell India to stop complaining about visas?

Indian tech firms and the country's government have repeatedly complained about U.S. restrictions and increasing denials of visa applications. But it remains to be seen whether India's offshore model, which relies heavily on access to visas, is under threat from Congress. The courts are a different matter.

One Indian firm, Infosys, is facing a grand jury investigation in Texas over its alleged use of vistors visas to deliver services. That investigation is the result of Jay Palmer, an Infosys employee, cooperating with authorities. He has also filed his own lawsuit.

In a different lawsuit, 18 laid-off IT employees are challenging their replacement by Indian workers under California discrimination law in a lawsuit against Molina Healthcare and Cognizant Technology Solutions.

However, regarding India's ongoing complaints about the visa, Robert Blake, the U.S. assistant secretary for South and Central Asian Affairs, said at a press conference last week: "Indians received 65 percent of the global quota for H1B visas, so an overwhelming percent, almost two-thirds of all issued -- all H1Bs issued last year were issued to Indians." He said that if any country should be "praising the program ... it's India."

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His email address is pthibodeau@computerworld.com.

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This story, "A guide to H-1B, green card reform" was originally published by Computerworld.

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