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This skills shortage,
coupled with the many problems involved in H-1B visa processing, leads
to dire consequences. Economic experts caution that the lack of
qualified workers will hinder the economy by curtailing business
expansion, curbing profits and stimulating inflation. Other consequences
include companies moving production facilities and jobs out of the
United States to countries where qualified workers are more abundant and
easily employable. This results in talented foreign technology
workers being lured away from companies in the United States by
companies in countries with less restrictive immigration
processes. These possibilities lend a sense of urgency to the
pleas of H-1B employers and have garnered congressional attention.
Although the bulk of
information affirms the U.S. labor shortage in the IT sector, a steady
voice has been heard from the other side. Representatives from the
AFL-CIO have cried foul, asserting that enough qualified American
workers exist to fill the ranks.
In fact, pro-labor forces scoff at the so-called desperate employers,
arguing that many of the largest high-technology companies are inundated
with resumes and reject the vast majority of applicants. These
opponents of the H-1B program also maintain that employers' interests
only lie in the younger, cheaper labor source that H-1B visas provide,
resulting in discrimination against available, but older, workers.
Additionally, it is argued that H-1B workers can be compared to
indentured servants because the system makes changing jobs cumbersome
and keeps mobility to a minimum. Finally, some employers do not
maintain interest in the H-1B talent, calling it an "addictive
quick fix." Instead, they have focused their energy inward
and are developing their current employees. B.
The Way We Were: Defining The H-1B Visa As It Existed Before The Fall
2000 Legislative Flurry
The United States'
immigration legislation concerning temporary foreign workers has long
been extremely protectionist in nature. Congress
has crafted it to protect the U.S. labor force and to allow foreign
temporary workers to enter the U.S. only when their admittance serves
the national economy, cultural interests, or welfare. The H-1B
nonimmigrant, working visa is a vivid example of this protectionist
legislation. As set forth in the Immigration and Nationality Act
(INA), an alien cannot receive the H-1B visa unless she
"is coming temporarily to the United States to perform services . .
. in a specialty occupation." A "specialty occupation"
requires "theoretical and practical application of a body of highly
specialized knowledge" and "attainment of a bachelor's or
higher degree in the specific specialty (or its equivalent) as a
minimum" requirement to perform the job. The regulations
indicate that the specialty occupations include, but are not limited to,
"architecture, engineering, mathematics, physical sciences, social
sciences, medicine and health, education, business specialties,
accounting, law, theology, and the arts." Thus, an important aspect
of the H-1B program is that it applies to a wide variety of professions.
The H1-B visa allows
temporary employment for a period of up to six years and
embodies the idea of a "dual intent." Dual intent includes the
intent to work temporarily and a simultaneous intent to possibly stay
permanently in the United States. The notion of "dual
intent" provides a major advantage as it allows the foreign worker
to adjust to permanent residency through an employment-based application
and thereby continue the employment. However, "dual intent" is
not attached to all nonimmigrant visas. For example, H-2 visas for
agricultural workers and H-3 visas for trainees embody only temporary
intent. To obtain one of these visas, the alien must prove to the
consular officer that he or she has purely temporary intent, not the
presumed immigrant intent, and, a residence abroad which he or she does
not intend to abandon. Another essential part of the H-1B procedure is its process. The H-1B process begins with the employer filing a Labor Condition Application (hereinafter "LCA") with the Department of Labor (hereinafter "DOL").
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