Immigration & Green Card Law Firm, Lawyers, Attorneys: San Franscisco Bay Area to San Jose: THE TRUTH ABOUT H-1B VISAS: THE UNTOLD STORY.

Monday, October 22, 2007


In the October 18, 2007 issue of the Palo Alto Daily News, an editorial opinion piece by Tom Elias presented so many misstatements that I felt compelled to address the issue.

First and foremost, I need to answer the question, what is an H-1b visa? We also need to define the term “specialty occupation“. All such cases filed by employers (large or small) must, by statute, involve a truly professional position. It does not involve “factory workers, low-level draftsman and the like” as Mr. Elias stated. Rather, “specialty occupations” refer to positions which require, at minimum, a specialized Bachelor’s degree or higher. The USCIS defines an H-1b job as one that requires the “the theoretical and practical application of a body of highly specialized knowledge“. The degree of specialization required in the law to qualify for an H-1b visa is such that not even a CEO, Prime Minister, nor a President of the United States, would generally qualify. These individual may need to be highly educated, or talented, but a specific academic degree, or any degree, is not required for successful entry into these fields. By contrast, positions such as CFO, Accountant, Software Engineer, Market Research Analyst, Chemist, Research Scientist, MD, Teacher, Lawyer, would all qualify as H-1b positions.

I do not want to argue that abuse hasn’t’ entered the system, nor that the program itself does not have flaws. However, Mr. Elias makes broad assertions and claims of ‘abuse’. He does not cite facts, but reveals as his source in his column an “unnamed” organization who, he says, has “uncovered” a document which purports to expose “the truth”. This brings to mind McCarthyism of the 1950s, using the tools of scare tactics and ½ truths. In fact, the H-1B program tries to balance the global economic realities, and U.S. companies’ needs, with a strong effort to protect American jobs and wage scale. The Labor Condition Attestation (LCA), required to be submitted by the employer in all H-1b cases, requires that the hiring company offer, at minimum, compensation that meets the “prevailing wage” - using the U.S. Department of Labor’s own wage surveys. Go to: Employers must also attest in the H-1b petition that they have not laid off similar workers, nor will they, and that they have made a “good faith” effort to find equally or more qualified U.S. workers. My personal experience tells me, with the high USCIS filing fees, legal fees involved, and the need to often ‘premium process’ these cases at an additional $1000 per applicant, U.S. employers do not use the H-1b program unless they truly have a need for these highly-skilled professionals.

In conclusion, to compete in the global marketplace, a reality now for all our U.S. companies, business needs to recruit and find the best and most qualified talent they can, whether American or foreign born nationals. In this time in our history, we cannot close our national gate, nor should we discourage international talent from competing with Americans for jobs. Nor should we limit our companies to only the U.S. market, anymore than we should limit Americans to only U.S. manufactured goods. Of course, unfair competition is unfair, and that is why it makes sense to require a company who employs an H-1b worker to pay, at minimum, the “prevailing wage”. But requiring American companies to hire anything but the best and most talented (whether native born or foreign) just doesn’t make sense. At the same time, there is no argument here that we must also immediately focus on and fix our broken educational system, and do our best as a nation to motivate our young people -- to enter science and technology programs. But until we do, we cannot tie the hands of U.S. business. We must not restrict, but increase the H-1b Program so that we can continue to attract, and then try to keep here, a highly specialized and skilled workforce. In the end, doing so will ultimately benefit every American.

Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

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zen kishimoto said...

I consider this problem as young vs. older IT engineers more than citizen/PR vs. H-1B workers. I think younger engineers with the latest skill set are in high demand now. But # of US engineers is not increasing to answer to the demand. Middle-aged engineers with a big salary without the latest skill set are suffering. There are only so many managerial and leadership jobs in the engineering sector.

As other countries are getting modernized and IT savvy, they will threaten the US supremacy in the IT industry. I think if the market dictates, no matter what the government does, more foreign workers will come eventually to fill a gap between supply and demand.... I do not know how to stop or even to delay such a trend...... So only thing we can do (as a former engineer) is to extend our talents in the areas beyond engineering.

jm said...

I would also like to wonder how many jobs have been created for American-born people by H1-B visa holders who decided to stay in the country and get a green card. Personally, and there are much larger success stories, I have created an average of about 20 jobs for 6 years so far at the last company I created, about 80% of which have gone to American-born people. And all H1-B visa employees were paid the same as American nationals, i.e. based on skills, experience, and responsibilities. But of course, there are much bigger companies that have been started by immigrants, and that do employ many more American-born people. At any rate, American nationals are always preferred if they are similarly qualified since there is less paperwork hassle, and they do fit the culture a bit more easily. Highly skilled immigrants who leave home and family behind to come to California do so because they have the entrepreneurial spirit. Can't do much more American than that. This is good to provide fresh blood and ideas to the US and keep the country competitive for the long term. This is even more true in a global world where more and more venture capital deals are done outside of Silicon Valley. Is there some abuse? Sure, but can anyone point to even a single system where there is no abuse? That would be an impossible claim. Anyway, America was built by entrepreneurial people coming from all over the world who earned their right to be American, and it will start declining when it closes its doors to such people. Try to keep American jobs for American-born people and it is the companies that will leave to find the skilled people they need in other countries. In fact, this has happened already quite a lot. As for illegal immigration, it is of course a completely different problem.