While critics often overstate problems with H-1B temporary visas, it is good policy to eliminate H-1B visa fraud in a practical manner. Perhaps the best way is to empower the potential victims of such fraud – H-1B visa holders. To the extent the current legal regime is insufficient to protect H-1B professionals it can result in individuals being taken advantage of, which harms the H-1B visa holder and, potentially, American workers.
Even if the typical H-1B visa holder is not an indentured servant, as critics allege, situations can arise that leave an individual vulnerable to exploitation. For example, one type of case is when a professional enters the United States but goes a number of months without working or being paid. Such an employer has acted illegally, since it is explicitly against the law to “bench” or place someone in a nonproductive capacity and not pay the individual.
To address these and other situations a number of measures can be taken that would enhance protections for H-1B visa holders and, indirectly, U.S. professionals.
First, Congress, USCIS and DOL should explicitly protect the immigration status of any H-1B visa holder who files a complaint alleging a violation by his employer. Whistleblower protections exist under current law. However, these provisions are not widely known, carry a degree of ambiguity, and are virtually unpublicized by the Department of Labor and U.S. Citizenship and Immigration Services.
More explicit language by Congress can be combined with effective action by government agencies to protect the immigration status of whistleblowers. This should not require an employer to pay a salary to an individual simply because he or she filed a complaint that is pending, since that can easily be abused. And there should be discouragement in the law or regulations regarding the filing of frivolous claims. However, making it clear that an H-1B visa holder who files a complaint can stay in the United States in H-1B status (and seek other employment) while a complaint is adjudicated would increase protections for the individuals and the integrity of the H-1B visa process.
Second, a process should be in place for an H-1B visa holder to file for private arbitration, if necessary, to retrieve disputed wages owed. Such a dispute may not rise to the level of a formal complaint or perhaps an individual feels uncomfortable contacting federal authorities over a private wage issue. While government bureaucrats are not universally loved in America, they are loathed in other nations. The right to arbitration of a wage dispute, which could also carry protection of immigration status, would help provide greater employee-employer balance for a group of people concerned with their immigration status in the United States.
Third, increase employment-based green card quotas and eliminate the per country limit for skilled immigrants. The possibility one would need to re-start the process with a new employer can limit the mobility of someone in H-1B status, which would make them less likely to complain. While most employers only want people to work for them who wish to be there, some employers could take advantage of a situation created by Congress not increasing the quotas for employment-based green cards.
Fourth, all H-1B visa holders should receive the key documents relevant to their case and H-1B status. This includes a copy of the labor condition application, which carries wage information and, for example, the I-797 approval notice. USCIS and the Department of Labor should seek to ensure H-1B visa holders are receiving the documentation they are entitled to, as well as information related to protection of immigration status and how to file complaints.
Finally, Congress should avoid enacting measures that would be so restrictive as to encourage U.S. employers to hire skilled foreign nationals abroad rather than in the United States. Two such actions would be to apply “recruitment” and “nondisplacement” attestations to all U.S. employers. There is no evidence of a need to expand the scope or application of these attestations. In the days of flexible job functions and multiple locations such provisions can cause a General Counsel to conclude his or her company may be unlikely to be in compliance if they hire any H-1B professionals. The safer alternative would be to expand outside the United States rather than risk such legal liability.
Current Law Addresses Key Concerns
Current law already addresses the main concerns of critics. Under Section 413 of the American Competitiveness and Workforce Improvement Act (passed in 1998), a company found committing a “willful” violation of the law regulating the proper wages for H-1B visa holders and displacing a U.S. worker is barred for three years from hiring any foreign nationals in the United States and faces up to a $35,000 fine per violation.
The problem is that the solutions proposed by some critics are essentially thinly disguised efforts to prevent employers from obtaining H-1B visas for any skilled foreign nationals, not really an attempt to address abuse. If one were concerned with companies committing fraud, then strict new requirements would not impact businesses that already ignore the current rules but rather would affect those who obey the law.