Expansion Of The number of H-1B work visas remains highly controversial

The failure to expand the H-1B Visa program makes it extremely difficult for U.S. companies to bring highly skilled employees to this country.

When President Obama decided to take unilateral executive action to tackle immigration reform, many in the high-tech industry were disappointed by the scope of the reform. As reported in The New York Times, the technology industry had been pushing for changes in the nation’s immigration policy to allow more skilled workers to enter the country on visas. One hope was that immigration reform initiatives would significantly increase the number of available H-1B visas. Apparently, however, the ability to obtain more H-1B visas will have to await congressional action.

Like so many things that touch on the issue of immigration reform, the H-1B work visa program is no stranger to controversy. As reported by The Washington Post, critics tend to view the H-1B visa program as a way for companies to save money on labor costs by relying on lower-paid but highly skilled workers from abroad. Business Week has bluntly stated that the H-1B program has been “corrupted by a large and growing share of firms” that use it for the twin purposes of acquiring “cheap labor” and to “facilitate the outsourcing of jobs.”

Proponents of expanding the H-1B visa program assert that businesses cannot find sufficiently skilled American employees to meet their needs. Therefore, America’s businesses have a critical need to bring more highly skilled foreign workers into the United States.

The nonpartisan Immigration Policy Center believes that H-1B workers do not pose a threat to American workers, are not poorly compensated for their work and are not merely a source of cheap foreign labor. According to the Center, numerous studies indicate that the presence of H-1B workers cuts down on outsourcing. Moreover, allowing companies to attract the most talented and creative individuals gives them a decisive competitive advantage over companies located abroad. Failing to take advantage of the most skilled workers from around the globe would put the United States at risk of “losing out on greater economic growth and prosperity.”

Workers’ Rights

According to the U.S. Department of Labor, both employers and H-1B workers need to be aware that, under the law, H-1B workers are granted a number of rights. Some of the more significant rights granted to workers are as follows:

  • The employer must give the H-1B worker a copy of the Labor Condition Application in which the employer attests to compliance with the requirements of the H-1B program.
  • The employer must pay the worker at least the same wage as paid to other employees with similar experience and qualifications or the prevailing local wage for the occupation, whichever is higher.
  • The employer is obligated to pay for nonproductive time caused by the employer or the worker’s lack of a permit or license.
  • The employer must offer the worker the same fringe benefits as other employees.
  • An employer may not require the H-1B worker to pay a penalty for leaving his or her employment prior to the agreed date.

Note that the restriction on penalizing an H-1B worker for leaving his or her job prior to a certain agreed-upon date does not bar the employer from seeking liquidated damages pursuant to state law for a breach of a valid employment contract.

Seek Legal Help

If your company is one that could benefit from the H-1B visa program, you should contact a New York attorney with experience in handling visa matters. An attorney can do everything possible to facilitate the visa process while at the same time keeping your business compliant with applicable federal immigration laws and regulations. Contact C.T. Lee & Associates at 800-494-3809 for additional information.

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