In the heated immigration debate, a bright spot has emerged—the bipartisan consensus that high-skilled immigrants benefit the economy. Yet even as Congressional Democrats and Republicans introduced competing bills this month to increase high-skilled immigration, the Obama administration is preparing to implement regulations that will restrict the visa process. Worse, administration documents revealed last week that since 2008, officials failed to issue thousands of legally-required high-skilled visas.
Illinois immigration attorney David Rubman, suspicious that the annual 65,000 H-1B high-skilled visa quota was not being filled, filed a Freedom of Information Act request, which U.S. Customs and Immigration Services (USCIS) complied with last week. The data shows that since fiscal year 2008, the agency has issued 15% fewer H-1B high-skilled worker visas than the law requires. This has deprived American businesses of thousands fewer high-skilled workers needed for the economic recovery.
USCIS is supposed to only stop the application process after it receives enough applications to fill the quota plus the number of predicted denials. Agency officials appear to have wildly miscalculated the number of denials and accepted tens of thousands too few applications to cover the quota. They may also have not accounted for the number of withdrawn applications. Over the past four years, this faulty accounting cost businesses nearly 45,000 legally-required H-1B visas.
At the same time that it was secretly under-issuing H-1B visas, the administration was preparing new restrictive regulations on the program. In June, the Department of Labor (DOL) proposed new rules that would make the application process much more time-consuming and expensive. Employers must currently submit a Labor Certification Agreement (LCA) with the number of workers it will cover. The LCA attests that 1) there is no strike or lockout, and 2) that the employer will pay the worker prevailing wages, 3) maintain working conditions for current employees, and 4) notify current employees.
The DOL would add 50 new information fields, none of which are required statute. Rather than asking for the number of employees to be hired, it asks for employee personal information and where they will work. This reduces flexibility vital to businesses, which often know this information only days in advance, not the months required for an application.
Even worse, current law requires the LCA be open to the public, so the new regulation would reveal confidential employee information. Highly-demanded foreign workers might hesitate to apply if their personal information will be open to anyone. Immigrants already face harassment—this rule delivers potential harassers and identity thieves a database with every H-1B visa holder in the country. It would also handover confidential corporate information to competitors, including data on salary structures, revenues, and the number and types of employees.
The new complicated form undermines Congressional intent for the H-1B process, which is to provide U.S. employers relatively quick access to foreign talent without wasteful bureaucratic reviews. Congress went to great lengths to restrict DOL’s authority to obstruct the H-1B process. The agency is only permitted to check the LCA for completeness and obvious inaccuracies (e.g. the wage listed is below the prevailing wage). It also may only investigate fraud based on a complaint and only after the LCA has been approved.
The new criteria fundamentally change the meaning of these requirements. Completeness and accuracy now create a heavy burden for employers and essentially empower the DOL to investigate preemptively in violation of the law. In other words, the Obama administration has neglected its duties in issuing visas, and now it is assuming powers never envisioned by Congress. In both cases, it has ignored the law.
These developments are not surprising. The Obama administration has worked to limit H-1B accessibility since the president assumed office. The stimulus package prohibited most major financial firms from participating in the program, and in 2010, the administration increased fees as much as $2,300. Over the same period, USCIS began to deny record numbers of applications—rising from 11 percent in 2007 to between 17 and 29 percent under this administration.
American businesses need to recruit highly-skilled talent to compete globally. Even as lawmakers from both major parties have woken up to this wisdom, the Obama administration continues to fight for protectionist policies that hurt American consumers and companies. Congress should stop these impending regulations and vote to force the executive to issue the legally-required visas before America further loses its competitive edge.