The Devastating Loophole in a Promising H-1B Bill

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What seemed to be good new might actually be the undoing of the H-1B visa program.  A bill is currently going through Congress that would increase the number of annual H-1B visas to 110,000 from the current 65,000.  Anyone who has applied for an H-1B visa knows that the extra 45,000 visas will not be wasted.  For the past few years, hundreds of thousands of applicants have vied for the same 65,000 visas and the time to increase the cap has long since passed.  On its face, this bill is great news.

But there’s a loophole.

Along with this increase, the bill also requires that companies and organizations looking to take on H-1B hires must list each job on a website created by the Department of Labor.  On this website, US citizens will be able to apply for these jobs and get preferential treatment.  That means employers are required to hire US citizens who are “equally or better qualified” than foreign H-1B employees.  US citizen applicants have the right to file a complaint for up to several years after having applied for any given position if they feel they were unjustly denied a job that went to an H-1B worker.  Then, the company wouldn’t be able to hire any more H-1B employees for many years to come.  This is a major liability issue and would no doubt discourage employers from offering jobs to H-1B workers at all.

This puts employers – particularly in the technology industry – in a fatal bind.  They need to hire H-1B workers because the US workforce simply cannot supply the demand for jobs in this expanding industry that requires highly skilled workers.  At the same time, a filed complaint could mean an end to a company’s ability to take on any H-1B employees at all for years to come.  What is the US economy to do?

While immigration reform is a hot issue this year that is likely to spur some policy change, it’s unclear what the fate of this particular bill will be.  It may go through some changes or be voted down entirely.  Perhaps fears about job-stealing H-1B workers will actually work in their favor this time and shoot down a bill that could strike a devastating blow.  No matter what happens, economists have generally agreed for a long time that immigration is good for – if not essential to – a healthy and thriving economy.  It’s about time our policies reflect that.

This article was written by Rebecca Little

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