Immigration & Outsourcing: An H-1B Loophole

By Alison at Legal Language
Posted on 05/09/2011
In Employment-Based, Immigration

The debate about immigration and the outsourcing of US jobs to foreign workers is gaining momentum thanks to a request by US companies to increase the number of H-1B visas allowed each year.

The H-1B is a highly coveted nonimmigrant visa that allows skilled foreign workers in “specialty occupations” to be hired by companies in the United States.

Hopes of Expanding H-1B Visa Limits

The H-1B was initially intended to complement and fill in gaps in the US labor market by securing skilled foreign labor in areas where a sufficient number of qualified US workers might be lacking. Requirements for US work visas vary — to qualify for the H-1B, a worker must possess a minimum of a bachelor’s degree (fashion models are an exception). Additionally, the worker must prove specialized knowledge in his or her field.

Currently a cap of 65,000 H-1B visas per year is in place. American companies are demanding this limit be increased to accommodate a need for more skilled workers, especially in the fields of engineering and science, in the US. There is even hope among some that talk of H-1B visas will shift to the eventual implementation of permanent residency status for such skilled workers.

Problems with the H-1B Visa

The request to increase the limit on the annual number of H-1B visas awarded has been met with significant protest by those concerned with cases of immigration fraud and abuse enabled by the H-1B visa.

People have pointed to cases in which the H-1B has enabled unnecessary immigration and outsourcing, often to the detriment of US workers. Recent reports suggest that some companies have abused the H-1B visa, bringing cheap foreign workers to the US that technically do not meet the standards of high-skill the visa’s requirements set forth.

Many claim that with the help of the H-1B visa, American workers have been replaced by workers from outsourcing companies who are not necessarily more skilled. There are also cases in which foreign workers brought in on the H-1B visa are paid cheaper wages than the Americans that they replaced, suggesting that the companies who hire them are more focused on maintaining a profit than sticking strictly to the legal requirements of the H-1B.

How the H-1B Should Be Used

In the H-1B debate, the legal legitimacy of Indian workers, who are the primary recipients of H-1B visas thanks to major Indian outsourcing companies, has particularly come into question. Severe critics of the H-1B may suggest that the visa should be suspended altogether; however, the program has its merits in ensuring that certain fields in the US do not lack for qualified workers — it’s just a matter of when and where the H-1B should be applied.

The most common concern seems to be the question of whether the importation of foreign workers is really necessary and whether companies seeking to outsource work through the H-1B are doing so because there are no American citizens or permanent residents qualified to do the job — or whether they are just trying to save a buck.

While the H-1B visa program can be valuable in filling in gaps in the US labor market, it’s important to ensure that it is doing just that — filling in the gaps — and not replacing qualified US workers with unnecessary immigration and outsourcing.

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