H-1B visa program is broken, and it needs fixing

What do Punxsu-tawney Phil and H-1B visas have in common? They both appear only one day each year.

Ironically – or perhaps fittingly – the only day we can catch a glimpse of H-1B visas is April Fool’s Day. Why is that fitting? Because we Americans are foolish to restrict the number of skilled foreign workers who can come to this country each year for temporary assignments in specialty occupations.

Consider these critical hires in New Hampshire alone:

• New Hampshire’s largest manufacturer of specialty textiles employs an H-1B worker as one of its senior technical managers.

• New Hampshire’s largest biotech contract manufacturer employs an H-1B worker as its top QC professional.

• New Hampshire’s (and the world’s) leading high-volume producer of ferrous investment castings employs an H-1B worker as its president.

• Some of New Hampshire’s most prestigious private schools employ H-1B workers on their faculty.

While these firms have been able to secure H-1B visas for these workers, that ability is threatened today.

When it worked well, the H-1B visa program provided a reasonably streamlined, efficient and predictable means for a company to employ in the United States highly skilled foreign workers for temporary periods up to six years. Bringing talented H-1B workers to the United States allows their talents to be shared with U.S. workers and promotes the kind of cross-border collaboration that is critical for U.S. companies seeking to remain competitive in an increasingly global economy.

But the H-1B visa program has not worked well for years.

Before 1991, H-1B visas were not subject to any annual numerical cap. Beginning that year, Congress capped the number of H-1B visas available each year at 65,000. That cap was hit in 1997, and again in 1998.

In response to political pressure from the business community, Congress temporarily raised the cap on H-1B visas from 65,000 to 115,000 in both 1999 and 2000, and then to 195,000 for fiscal years 2001-2003.

In 2004, however, the cap reverted to its initial annual allotment of 65,000 H-1B visas. That number has been fully depleted every year since. This fiscal year the cap was reached on the first filing day – April 1, 2007. In fact, to respond to the flurry of petitions (more than twice the number allotted for the year), the government selected petitions for processing based on a random lottery.

If you weren’t one of the lucky ones in 2007, there will be no H-1B for you until at least Oct. 1, 2008.

Skilled foreign workers contribute at a high level across the country and in all fields of endeavor, but especially in science and technology. According to a recent report by the Kauffman Foundation, 25 percent of the international patents filed from the United States in 2006 named as inventors or co-inventors individuals with non-U.S. citizenship working in the United States. By constricting the supply of skilled foreign workers, Congress is threatening to choke off an important and fertile source of economic growth, in an economy that is far from full throttle as it is.

When U.S. companies can bring talented foreign professionals to work in the United States they often also create additional jobs for U.S. workers. If a U.S. company is forced to outsource a function because it cannot bring in the foreign personnel needed to assist in the operation, then it is often more than just the foreign worker who loses an opportunity to work in the United States.

Last July, Microsoft announced that it was opening a new development center in Vancouver, Canada. One of the reasons given for choosing Canada was that Canadian immigration law is more generous and flexible when it comes to skilled foreign workers. As one Microsoft employee noted on his blog:

“So, what does this have to do with the U.S. H-1B cap? Not only will this be a full development center, but it will also be a great alternative location for some of the new hires into Microsoft who have not been able to get their H-1B visas this year due to the limited quota. Since Vancouver is just a short train/car ride away, it will be easy to stay in touch.”

Canada’s gain is America’s loss.

The business community has been slow to react to the current H-1B crisis. It may be that business leaders are gun-shy about suggesting that Congress increase their ability to employ foreign workers at a time when so much hostility and mistrust surrounds the entire subject of immigration. H-1B workers seed a workplace, and other jobs, for U.S. workers, grow around them. Business leaders cannot be shy about making known their need for qualified foreign professional workers.

Call your congressmen and senators to urge swift and responsible action to increase the number of H-1B visas available to strengthen our domestic work force now and in the future.

Tom Hildreth is a director in the Corporate Department of McLane, Graf, Raulerson & Middleton, where he founded the Immigration Law Practice Group. He can be contacted at 603-628-1177 or tom.hildreth@mclane.com.