Goodbye H-1B; Hello, green card reform

An introduction to the package

For a generation of skilled Indians, the H-1B visa was the passport to greener professional pastures in the US. Leveraging their specialised skills that were in demand, thousands of workers have over the years clambered aboard Flight H-1B and built flourishing careers - and their own American Dream. Many of them subsequently became entrepreneurs and are among the top innovators in the US. Indian software service providers, who have burnished the image of Brand India, too owe much to the H-1B programme.

However, in recent years, the H-1B programme has drawn flak from various sides owing to its perceived limitations and loopholes, and on occasion even its proponents have found themselves unable to defend it with vigour. The back-and-forth over the H-1B has increasingly been caught up in a larger debate in the US over immigration reform, which gets accentuated with every political cycle. With unemployment in the US running at 9%, the debate has acquired a mean edge on the fringes.

Firstpost presents an exclusive package of articles on the H-1B programme, which offer a 360-degree perspective on the debate, the course it could take, and the implications it could hold for thousands of Indians and software service providers. Anchored by Senior Correspondent Bernice Yeung from her perch in Silicon Valley, the innovation capital of America, the package has four elements to it. This here is the main article; additional elements, exploring subsidiary strands, can be accessed here, here and here. Do read the package in its entirety, and share your thoughts on it. -- Firstpost Editors

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Skilled Indian workers and leading software service providers are being tossed in the crosscurrents of a politically charged debate over US immigration.

The H-1B visa programme, which provides more than 10,000 Indians with temporaryemployment rights and a shot at permanent residence in the US, has long been the keystone of work-based migration to America. But in today's increasingly global world, no one stateside appears happy with the current state of affairs.

 Goodbye H-1B; Hello, green card reform

Even among those who see immigrant workers as a boon to the U.S. economy, the beleaguered H-1B visa programme has few fans.AFP Photo

Pro-immigration critics of the H-1B visa now argue that the programme is no longer responsive to the global economy. They have instead shifted to focusing on reform to the backlogged employment-based green card system, which forces some skilled workers to wait up to a decade or more to obtain permanent residency.

Meanwhile, anti-immigrant forces claim that the visas enable employers to exploit the programme by bringing in supposedly cheaper and sub-par foreign workers at the expense of U.S. workers.

And with U.S. unemployment hovering at 9% and a fractious philosophical battle over comprehensive immigration reform, a hyperpartisan political environment leaves Indian employers and workers feeling embattled.

"There is a feeling (from Indian companies) of being scrutinised and you can't win for losing," said Patricia Haim, a shareholder and business immigration attorney with Littler Mendelson who represents Indian software firms. "There's a sense of being picked on."

"People are still thinking we are stealing jobs when we are here to help the economy," added Shoji Mathew, the Chicago-based president of North American Association of Indian IT Professionals and a former H-1 visa holder.

From recent government investigations to high-profile lawsuits to congressional hearings and government reports, the H-1B visa programme has received criticism from all corners. But unlike previous stabs at reform, pro-immigration legislators aren't looking to overhaul the H-1B programme itself. Instead, current attempts to address the shortcomings of the programme - which was crafted long before the global economy started going gangbusters - has taken the form of legislation that would make it easier for skilled workers to stay in the country permanently.

Back in the spotlight

H-1B visas and other work-based immigration visas returned to the spotlight in January when U.S. President Barack Obama signalled support for retaining American-trained foreign students during the State of the Union address:

Others come here from abroad to study in our colleges and universities," he said. "But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense."

Obama again signalled his interest in reforming employment-based visas to "make American more competitive in the global economy" on 10 May 2011 during a speech in Texas addressing comprehensive immigration reform.

But the H-1B visa programme in particular, faces heavy critique. In January, the U.S. Government and Accountability Office (GAO) issued a report critical of the visa programme entitled 'H-1B: Reforms Are Needed to Minimize the Risks and Costs of Current Program'. Among the concerns documented by the non-partisan auditing agency: The expansion of eligible jobs and skill categories has effectively "lowered the bar" for H-1B workers. The GAO also noted a lack of government oversight about whether H-1B workers are earning market-rate wages.

The report was followed by a March hearing sponsored by the U.S. House of Representative's Committee on the Judiciary that featured testimony from both advocates and critics of the visa programme.

Rochester Institute of Technology's Ronil Hira, a long-time critic of H-1B visas, for example, testified that while he believes that the U.S. benefits from the efforts of skilled foreign workers, "loopholes in the programme have made it too easy to bring in cheaper foreign workers, with ordinary skills, who directly substitute for, rather than complement, workers already in America."

This was followed by renewed charges of outright visa fraud by Indian companies and individuals.Some observers argue, however, that the fraud allegations should be kept in perspective, and that work-based visas nevertheless serve an important business function. "There are always going to be bad employers who take advantage of people," acknowledged Haim, the attorney with Littler Mendelson. "But you have to have a realistic sense of the parameters for identifying what needs to be gone after. There's no doubt that there's fraud, but the U.S. also has a clear interest in multinational and international trade and bringing talented people in to help U.S. businesses. It's a balancing act."

Meanwhile, some immigration advocates see the emphasis on nefarious staffing companies, willful acts of fraud, and the displacement of American workers as a political play by anti-immigrant groups. "Increased scrutiny on H-1B visas in general does come, in part, from the immigration restrictionist agenda," said Connie Choi a staff attorney with the Asian Pacific American Legal Center in Los Angeles. "Chinese and South Asians are feeling the squeeze, and very few organisations are taking up the issue."

Fraud aside, there's a more subtle policy subtext to the current spotlight on H-1B visas. Despite Obama's vocal support for high-skilled foreign workers, factors like the economic downturn have generated renewed concern that the H-1B visa has allowed subpar foreign candidates to displace American workers.

"The debate [around H-1B visas] is about how to balance two policy goals: Allow American companies to bring workers that they need while ensuring that Americans are protected from unfair competition," said Jeanne Batalova, a policy analyst with the Migration Policy Institute, a Washington D.C. nonpartisan think tank. "If you look back over the past 20 years, you'll see that every piece of legislation has tried to address the concerns of both these sides, either by imposing or lifting caps, imposing fees, and making it more difficult to bring workers in. We see the same kinds of arguments in the GAO reports and the testimony in the house committee."

A flawed visa with few fans

But even among those who see immigrant workers as a boon to the U.S. economy, the beleaguered H-1B visa programme has few fans.

Tech entrepreneur and industry scholar Vivek Wadhwa, for example, calls the H-1B visa a "necessary evil". "Initially when I started writing about immigration, I actually attacked the H-1B visa because it's a flawed visa," said Wadhwa, who is currently a visiting scholar at UC Berkeley. "It's a temporary visa and it's owned by the company and not the worker, so the workers can't take the visa wherever they want to go. They're held hostage, which means there is a salary distortion. But what I realised was that my writing was being used as a way to close the doors on immigration. People that oppose H-1Bs aren't concerned about the people on the visas; they see it as a gateway to legal immigration. If they shut off H-1B visas, then they shut off all immigration."

Because Wadhwa and other advocates of skilled-labour immigration argue that the U.S. must continue to attract and retain the world's best and brightest, he is instead championing increases to the number of employment-based green cards that are issued each year. More specifically, he'd like to see the elimination of the 7% per-country limit and the current cap of 140,000 tripled for five years.

"My research has documented that there is backlog of 1 million people waiting for green cards," Wadhwa said, "and about 35% to 40% are Indian, which means there are 300,000 to 400,000 Indians waiting for their green cards. So if you're a fresh graduate from Duke or any good engineering school, you could be waiting decades for a green card."

Wadhwa also supports the Startup Visa, which awards a two-year visa to entrepreneurs who can show that they have the financial support of a U.S. investor.

Meanwhile, companies like Intel, which by one tally, received the ninth-largest number of H-1B visas between 2007 and 2009, would also like to see changes to the way that H-1B visas are issued. "We want the arbitrary [per-country] caps that are part of the visa programme to be reconsidered," said Lisa Malloy, a spokesperson for Intel. "We would like to see a more market-driven approach. If there is more demand, we'd like to see more visas available for places like India and China."

Intel is also throwing its support behind legislative attempts to streamline or modify the green card process. "We are supportive of any effort that will make it easier for foreign nationals to work at Intel at our U.S. facilities, no matter whether they are an employment-based visa or green card efforts," Malloy said.

Changing the subject

While some H-1B critics are calling for federal fraud enforcement and improved monitoring to ensure foreign workers are not displacing American workers, proponents of skilled-labour immigration are already pursuing a new strategy.

One statistic has been particularly instructive for these reformers: Foreign-born students received 42% of U.S. engineering master's and 53% of U.S. engineering Ph.D.s nationwide in the 2009-2010 academic year, according to the American Association of Engineering Societies.

The focus on permanent visas for the high-skilled foreign worker has created unusual alliances.AFP Photo

Bruce Morrison, a former Connecticut legislator and the architect of the H-1B programme, testified in the government hearing in March on behalf of the Institute of Electrical and Electronics Engineers (IEEE)."Globalisation has made it easier for multinational companies to go where the talent goes, rather than insist that the talent stay in America," he said. He then told lawmakers that it was time to "change the subject - from H-1B to green cards".

Among Morrisons' suggested reforms: Eliminate the per-country limit on employment-based green cards to recognise that "the biggest talent pools" come from Indian and China.

This is a strategy that UC Berkeley's Wadhwa supports. As one of the early predictors of the so-called "reverse brain drain", he said that without mechanisms to retain highly skilled immigrants, "India and China and Brazil and Russia are gaining; every country is gaining at the cost of America," said Wadhwa, who is also affiliated with Harvard and Duke universities. (A recent survey produced by Wadhwa and UC Berkeley scholar AnnaLee Saxenian, for example, found that Indian and Chinese entrepreneurs have returned - and thrived - in their home countries.)

Sanjay Puri, founder and chairman of U.S. India Political Action Committee (USINPAC), agrees that the conversation needs to shift to a focus on allowing foreign workers to remain in the U.S. "When we have people coming from all over the world and they are spending time and energy to learn, and if there is a skill shortage in that area of expertise, then we have to find a mechanism to keep some of them here," he said, "because they can take their expertise back to their countries and we have lost that valuable resource."

The focus on permanent visas for the high-skilled foreign worker has also created unusual alliances. The Semiconductor Industry Association and the IEEE - two organisations typically at odds with each other over the H-1B visa programme - came together to issue a joint statement in support of reform prior to the March hearing. The organisations emphasised "permanent admissions and the need for immediate efforts to retain highly skilled graduates with advanced degrees from America's top science and engineering programmes".

Naturally, there are detractors to these proposals, and Norm Matloff, an engineering professor at UC Davis and a vocal detractor of the H-1B programme, maintains that green cards are not the solution.

While he said the issuance of green cards to foreign workers could help prevent their exploitation and underpayment, he remains opposed to this strategy because "the problem still remains that Americans are getting hurt by a swelling of the labour market with young workers" on worker visas who command a lower salary. The GAO report found, for example, that H-1B workers tended to be younger and more than 50% of the visas were issued for entry-level positions.

Business immigration attorney Haim agreed that there could be better government regulation of whether certain jobs are misclassified into lower wage categories, but she added that "a lot of these folks are being hired directly out of graduate school or college, suggesting it is a Level 1 [entry-level] job".

"I understand the argument that employers prefer younger workers to older, but that is endemic of the entire economy," she continued. "Older workers are having a difficult time finding employment, that's absolutely true. But I don't think 65,000 H-1B workers in workforce of tens of millions is going to make that much of a difference."

Whither H-1B reform?

With the focus on green cards, H-1B reformers are singing a different tune than they did in years past. In past Congressional sessions, Sen. Dick Durbin (D-IL) and Sen. Chuck Grassley (R-IA) introduced bills to improve fraud enforcement and address the underpayment of H-1B visa holders. No such bill has been introduced to date. (Sen. Grassley's office did not return phone calls seeking comment; Sen. Durbin's office declined to speak on the record.)

But there's plenty of action on the green card front. Rep. Jeff Flake (R-AZ) re-introduced in January the STAPLE Act, which would provide an automatic green card to foreign students who receive a Ph.D. in science, math, technology or engineering.

"Congressman Flake has stressed that unless we adjust our visa policy, we're going to continue to needlessly see American-trained Ph.D. graduates benefit foreign companies," his press secretary, Genevieve Frye Rozansky, wrote in an email. (The Migration Policy Institute's Batalova, however, cautions against the "diploma mills" spawned by similar legislation in Australia.)

Still the bill does appear to respond, in a roundabout fashion, to the calls for an increase to H-1B visa caps. "The STAPLE Act would authorise foreign-born students who have earned a Ph.D. degree in the U.S. in a science, technology, engineering, or mathematics field - and have a job offer in the U.S.-to be exempted from the numerical limitations on H-1B visas and green cards, which would allow for more high-skilled graduates of our own universities to put use their skills to use to the benefit of the U.S. economy," Rozansky wrote in an email.

And Rep. Zoe Lofgren (D-CA) is preparing to introduce legislation that would provide additional green cards for workers with advanced degrees from American universities, incentivise foreign entrepreneurs to start businesses in the U.S., and reform H-1B and L visa programmes. (Pedro Ribeiro, Rep. Lofgren's press secretary, declined to provide additional details about the legislation since it is "still a work in progress.")

At the house judiciary committee hearing in March, Rep. Lofgren was vocal about the flaws she saw in the employment-based visa programmes - that instead of encouraging the "best and brightest" foreign students and workers to remain in the U.S., "our laws force them to leave and compete against us from overseas".

In her remarks, she also indicated that she was shifting her attention toward modifying the green card system. "We have years-long backlogs right now that are preventing H-1B workers from getting the green cards that would actually allow them to lay roots, start businesses and invest in America," she said. "Increasing H-1B numbers can't fix that."

Still, in the current political and economic climate, immigration-related legislation is an uphill climb, political observers said.

"[Congress has] reached a stalemate on the comprehensive immigration reform so they are looking for ways to perhaps address an permanent employment based theme, or at how to fix the H-1B temporary visa programme," said Migration Policy Institute's Batalova. "Nowadays the strategy is to address the least controversial programmes or aspects of a programme, so I think there will be some bills to find ways to increase the number of green cards for employee-based immigration."

But, she added: "The third rail in politics is immigration."

Updated Date: Dec 20, 2014 03:45:06 IST