Dear President-Elect Obama,
We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season's greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.
One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.
There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.