Why U.S. Visa policies are like Microsoft Windows

Inventory of H-1B Visa Woes & What’s Needed for Positive Change

U.S. immigration and visa policies are like the Windows operating system. After decades of usage and many repairs to its code/policies, they both still need more patching and enhancements. Both of these institutions start off with a good idea and then discover that:

- we forgot a few critical things - malcontents are manipulating this and we need to put in stronger security and more controls - people are not using this the way we envisioned - etc.

Before we get too far in this, let’s remember who qualifies for an H-1B visa. According to the U.S. Citizenship & Immigration Services:

"The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability."

Let me go on the record and say I’ve not afraid of the U.S. being overrun by fashion models but to read the IT press, there may be a problem with too many offshore IT techies or the wrong sort of techie getting these visas.

There is one other major visa type and that’s the L-1. To qualify for this:

- the U.S. company to which you are being transferred must be a branch, subsidiary, affiliate or joint venture partner of your non-U.S. employer - Employment in the U.S. company must be as a manager, executive or person with highly specialized knowledge and skills (source: http://faq.visapro.com/L1-Visa-FAQ3.asp#Q1 )

Yes, the visa process needs some repairs but what are they? Here’s my shortlist:

- The original intent for H-1B visas was to permit individuals with highly specialized, scarce skills (i.e., distinguished merit or capability) work in the United States but that seems to have gotten confused in the last decade. Congress must either re-affirm this or re-work the program. Apparently, there exists some confusion about what a highly specialized, scarce skill is. For many years this meant rocket scientists, brilliant PhDs working on research projects, people who publish books and papers, people who create inventions, people who have patents to their name and other people who were in the top 1% of the top 1% of their profession. Being a fresh, just-out-of-college Microsoft SQL Server database administrator does not meet that standard. It never did and we shouldn’t pretend that it does. We need a better definition of who can qualify and we need it now.

- Make it abundantly clear that employers must have legitimate positions, in their firm, for these people in the United States. The H-1B visa is not a full-employment program for non-U.S. workers. When firms attempt to bring in people with generic skill sets for potential contract work in the U.S., they are not in compliance with the letter or spirit of the visa guidelines. More criminal cases like the ones in Iowa this week are going to make this message crystal clear. Also check out this article in InfoWorld.

- Get further clarity around what H-1B visa holders should be paid. When employers pay below U.S. market wages for an H-1B visa worker, they are affirming that this person is here to do the work of a domestic employee at a lower cost rate. This is labor arbitrage and not the acquisition of scare, highly skilled expertise. Labor arbitrage was never the intent behind this visa. This below market pay is also unsettling as it sends negative messages about the U.S., the firm paying the visa holder and the customer, if there is one, who is receiving the effort of the visa holder’s work. I won’t knowingly buy products made in a sweat shop and I would not want to acquire services from a firm that pays its employees who are working in the U.S. (a high cost of living nation) the wages its employees receive in their home country.

- Enforce the laws we already have. Where fraud and other criminal activity exist, the Federal government must act and act strongly.

- Take the patriotism and nationalism out of the debate. It saddens me to see politicians and others wrap themselves around the flag and suggest visa policy changes that demand employers fire their non-U.S. workers first. Frankly, if the non-U.S. personnel are truly brilliant and creating wealth for the company, let them stay. If the work isn’t adding value, then why is anyone doing it at all? It may sound patriotic to protect U.S. jobs but which jobs are being protected? We need to protect those jobs that drive innovation, wealth creation, and better, more competitive firms.

- Before we discuss raising (or lowering) the number of visas granted, let’s agree on who should be getting them first. Raising the cap without agreeing on the rules, rationale, qualifications, permitted usages, etc. is a ridiculous exercise. Instead, we should look at refining the lens for accepting people into this visa program. We may already have enough visas if the rules and guidelines are fairly and correctly applied. How many visas are enough? I don’t know but I know that many firms that could benefit from access to more geniuses are fighting for the same visas as firms who are just playing labor arbitrage games with people of comparable IT skills as those found in many U.S. IT workers.

New legislation is already being proposed before the U.S. Congress. Let’s hope Senators like Durbin and Grassley look at the total visa issue before making too many changes. But, whatever they do, they, like Microsoft, must make changes as the current system just isn’t working as designed.