Senate Negotiators Working to Determine Future H1B Visa Allotments

When the Senate’s Gang of Eight released its bipartisan framework for comprehensive immigration reform, in late January 2013, it pledged to improve our legal immigration system and attract the world’s best and brightest to our shores. [See Bipartisan Framework for Comprehensive Immigration Reform from Senators Chuck Schumer, John McCain, Dick Durbin, Lindsey Graham, Robert Menendez, Marco Rubio, Michael Bennet, and Jeff Flake, 29.Jan.2013.] The document speaks mostly in generalities, but it did promise – explicitly – to “award a green card to immigrants who have received a PhD or master’s degree in science, technology, engineering, or math from an American university.” Left unsaid was how the group intended to handle a somewhat more contentious issue: H1B visas.

The future of the H1B program is one of many issues facing the Gang of Eight as legislative negotiations continue, behind closed doors. The shroud of secrecy was lifted, briefly, in a recent Washington Post article, claiming Senate negotiators will not only make good on their promise to provide green cards to foreign STEM graduates of American universities, but also will “…dramatically increase the number of high-skilled foreign workers allowed into the country…”, according to unnamed “people familiar with the negotiations.” [See Visas for High-Skilled Workers Could Double Under Bipartisan Senate Plan, by Peter Wallsten, Washington Post, 20.Mar.2013.]  Under the plan, the Washington Post reported, “The number of visas available would approximately double from the current limit of 65,000 per year.”

This is the position staked out, earlier this year, by Senator Marco Rubio, a member of the Gang of Eight. Together with his Senate colleagues, Orrin Hatch (R-UT), Amy Klobuchar (D-MN), and Chris Coons, (D-DE), Mr. Rubio co-sponsored a bipartisan measure called the Immigration Innovation (I2) Act of 2013, which seeks to raise the H1B cap from 65,000 to 115,000 annually, and create a “market-based escalator” to adjust the cap – up or down – according to economic needs. The bill also would set a ceiling of 300,000 H1B visas for any given year, and would eliminate the advanced-degree (or master’s) cap that currently provides up to 20,000 additional H1B visas per year. [See Immigration Innovation (I2) Act of 2013, Factsheet, Office of Senator Orrin Hatch.]

The Washington Post reports that Senator Durbin (D-IL) is the only member of the Gang of Eight who wants to impose restrictions on the H1B program:

“One would prevent certain firms that rely heavily on H1B visas from hiring more workers under the program, and the other would require companies to make a ‘good faith’ effort, subject to federal oversight, to recruit American workers. But instead, the group has tentatively agreed to impose stiff fees on some outsourcing companies that hire H1B workers and to require modest measures to encourage the hiring of Americans, such as advertising the jobs, but with limited federal oversight.”

However, these provisions are unlikely to prevail, according to the Post.

Murthy Law Firm founder and president, Sheela Murthy, remarked:  “The unfortunate thing is, nobody on the Gang of Eight – not even Senator Rubio – has been bold enough to ask the obvious question: Why restrict H1B visas at all? As we have seen in the past several years, employers did not use H1B visas if they could find qualified U.S. workers. Why not let the free market govern supply and demand? This would be more efficient – and far more responsive to changing economic conditions – than a system of inflexible caps!”

This is not as radical as it may sound, at a time when some immigration experts are advocating a laissez faire approach to immigration across all categories – not just for H1Bs. Alex Nowrasteh, a prominent libertarian commentator from the Cato Institute, a well-respected Washington think tank, recently told National Public Radio’s Planet Money team that America should take in almost everybody who shows up, except for criminals, suspected terrorists, and people with serious infectious diseases. [See Three Ways to Totally Transform U.S. Immigration Policy, by David Kestenbaum, NPR Planet Money, 21.Feb.2013.] By contrast, uncapping H1B visas would be a modest free-market solution, carefully targeted to address a known problem: the mismatch between supply and demand for the world’s best and brightest. It’s a proposal that dares to ask the question: why limit our economic potential?

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