The H-1B visa program plays a vital role in our economy. It allows American employers to hire talented foreign students graduating from U.S. universities with degrees in science, technology, engineering and math fields.
It gives these students a try-out period so that American employers can determine which are talented enough to deserve permanent residence. These foreign scholars are part of America's present and future competiveness.
These students have the potential to come up with an invention that can save thousands of lives or jump-start a whole new industry. They also have the ability to found a company that can provide jobs to tens of thousands of American workers.
It appears that doctorates lead to much more invention than bachelor's or master's degrees. Sixteen percent of those with doctorates were named as inventors on a patent application, while only two percent of those with bachelor's degrees and five percent of those with master's degrees were named.
Not all H-1B visas go to workers in scientific fields. In 2009, only 35 percent of all initial H-1B approvals went to workers in computer-related fields.
Foreign workers are receiving H-1B visas to work as fashion models, dancers, and as chefs, photographers, and social workers. There is nothing wrong with those occupations, but I'm not sure that foreign fashion models and pastry chefs are as crucial to our success in the global economy as are computer scientists.
The 65,000 base annual quota of H-1B visas is going to come under more and more pressure as the economy improves. If Congress doesn't act to increase the H-1B cap, then we may need to examine what sort of workers qualify for H-1B visas.
Congress also will have to ensure that the L and B visa programs are not abused by employers seeking ways around the H-1B cap. No matter how generous our legal immigration system is, there will always be individuals who seek to game the process.
The H-1B program has safeguards built into it to protect the interests of American workers. It is a subject of great dispute as to whether those safeguards are sufficient. The Government Accountability Office recently found that H-1B employers categorize over half of their H-1B workers as entry level -- which is defined as "perform[ing] routine tasks that require limited, if any exercise of judgment" -- and only six percent as fully competent. Are all these entry level workers really the "best and brightest"?
The dollar differences are not trivial. In New York City, the prevailing wage for a computer systems engineer in systems software is $68,370 for an entry level worker and $120,037 for a fully competent worker. Are American workers losing out to entry level foreign workers?
We also need to safeguard national security. The Government Accountability Office recently found that the U.S. government approved over one million H-1B visas to foreign nationals from 13 "countries of concern" -- the names of the countries withheld for security reasons.
I am also concerned about the legacy of fraud in the H-1B program. At a hearing over a decade ago, we heard about petitioning companies that were nothing more than a P.O. Box, an abandoned building or a fictitious address and single telephone number. We heard about H-1B workers slated for employment as janitors or nurse's aides or store clerks.
Apparently, such fraud is not a thing of the past, despite a $500 anti-fraud fee that was instituted in 2004. In 2008, USCIS's Office of Fraud Detection and National Security issued an assessment that found outright fraud in over 13% of randomly selected cases.
Still, the H-1B program usually does operate to the benefit of America, American employers -- especially high tech employers -- and American workers. It is the job of Congress to ensure that it always does.