[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                  SHOULD CONGRESS RAISE THE H-1B CAP?

=======================================================================

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 30, 2006

                               __________

                           Serial No. 109-95

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                         Allison Beach, Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 30, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on Immigration, Border 
  Security, and Claims...........................................     3
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1

                               WITNESSES

Mr. John M. Miano, Chief Engineer, Colosseum Builders, Inc.
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Mr. Stuart Anderson, Executive Director, National Foundation for 
  American Policy
  Oral Testimony.................................................    45
  Prepared Statement.............................................    46
Mr. David Huber, Information Technology Professional, Chicago, IL
  Oral Testimony.................................................    54
  Prepared Statement.............................................    56
Dr. Delbert Baker, President, Oakwood College
  Oral Testimony.................................................    58
  Prepared Statement.............................................    60

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

The Honorable Maxine Waters, a Representative in Congress from 
  the State of California........................................     5

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    75
Mr. Ralph Hellman, Senior Vice President, Information Technology 
  Industry Council...............................................    76
Mr. Dan DeBoer, Information Technology Professional, Lisle, 
  Illinois.......................................................    78
Mr. John A. Bauman, President, The Organization for the Rights of 
  American Workers...............................................    80
Mr. Robert W. Holleyman, III, President and CEO, Business 
  Software Alliance..............................................    81
Mr. Darrell L. Rauthburn, Information Technology Professional, 
  Columbus, Ohio.................................................    86
Mr. John Palafoutas, Senior Vice President, AeA..................    89
Ms. Linda Evans, Matthews, North Carolina........................    91
Mr. Billy Reed, Past President, American Engineering Association.    93
Mr. John William Templeton, Coalition for Fair Employment in High 
  Technology.....................................................    96
Mr. Michael Emmons, Information Technology Professional, 
  Longwood, Florida..............................................    97
Ms. Esther Massimini, Principal Engineer, Aerospace Electronics 
  Honeywell......................................................    98
Mr. Henry G. Huestis, Electrical Engineer, Spokane Valley, 
  Washington.....................................................   101
Mr. Michael W. Gildea, Executive Director, Department for 
  Professional Employees, AFL-CIO................................   107
Mr. Mark A. Powell, Information Technology Professional, 
  Westminster, California........................................   111
Ms. Lynn Shotwell, Executive Director, American Council on 
  International Personnel........................................   113
Ms. Sandra J. Boyd, Chair, Compete America.......................   115
The Institute of Electrical & Electronics Engineers - United 
  States of America..............................................   117
Ms. Toni L. Chester, Software Developer, Bloomsbury, New Jersey..   124
Shahid Sheikh....................................................   129
Letter from Mr. Jack Krumholtz, Microsoft Corporation............   130


                  SHOULD CONGRESS RAISE THE H-1B CAP?

                              ----------                              


                        THURSDAY, MARCH 30, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
King (acting Chair of the Subcommittee) presiding.
    Mr. King. Good morning.
    I'd like to make an announcement that Chairman Hostettler 
is not able to be here this morning, and so I'll be chairing 
this Subcommittee meeting.
    And in the interest of expediency, before we move on to the 
open part of the hearing and the opening statements by the 
other Members, I'd like to break from established protocol and 
recognize Ms. Jackson Lee for an opening statement because she 
has an urgent schedule to meet. And I'm very grateful--very 
happy to be able to do that.
    Ms. Jackson Lee, you are recognized for your opening 
statement.
    Ms. Jackson Lee. Mr. Chairman, I thank you so very much.
    Mr. Chairman, I thank you so very much, and it's an honor 
and pleasure to serve as the Ranking Member of this 
Subcommittee and to welcome all of the witnesses for a very 
important hearing.
    Please do not in any way take my absence as an indication 
of the--of any lack of interest or importance of this hearing. 
Unfortunately, a scheduled event that required my presence was 
unavoidable, in essence, in terms of the timing that it had to 
occur.
    But I do want to emphasize the importance of this hearing 
very quickly and to say that there are several themes that I 
think are integrated in this particular hearing, Mr. Chairman.
    One, this is an affirmation of legal immigration, and we 
are in the midst of a debate about immigration. The emotions 
are high. There is a great deal of tenseness. I'd almost call 
for a timeout.
    But this is a hearing about H-1B visas, which tend to focus 
on needed profiles of employees that American companies 
represent that they need to the United States. I've lived 
through this debate for any number of years, writing 
legislation with Representative Lamar Smith that I thought was 
very balanced, that had to do with providing visas, but also 
emphasized American workers. Training American workers, 
providing American workers with their opportunity.
    And so, this morning, I want to, again, emphasize that this 
program is allowing American employers, if they didn't have 
this, would not be able to hire enough highly educated 
professionals for the specialty occupations. And a specialty 
occupation is employment requiring the theoretical and 
practical application of a body of highly specialized 
knowledge. This may include doctors, engineers, professors, 
researchers in a wide variety of fields, accountants, medical 
personnel, and computer scientists, and software writers.
    Besides using the H-1B program to obtain foreign 
professionals who have skills and knowledge that are in short 
supply in this country, U.S. businesses use the program to 
alleviate temporary shortages of U.S. professionals in specific 
occupations and to acquire special expertise in overseas trends 
and issues--with expertise in overseas economic trends and 
issues. This helps U.S. businesses to compete in global 
markets.
    As an American employer who wants to bring an H-1B employee 
to the United States, among other requirements, they must 
attest that he will pay the H-1B employee the greater of the 
actual compensation paid to other employees in the same job or 
the prevailing compensation for that occupation. That was in 
place so that we would not have lower wages for foreign 
workers, thereby not hiring American workers. That he will 
provide working conditions for the non-immigrant that will not 
cause the working conditions of the other employees to 
adversely be affected, and that there is no applicable strike 
or lockout.
    The employer must provide a copy of the attestation to the 
representative of the employee bargaining unit. Additional 
attestation requirements for the recruitment and layoff 
protections are imposed on firms that are H-1B dependent. A 
company is considered H-1B dependent if 15 percent or more of 
its employees are H-1B workers.
    These are the hard questions that we need to ask, is 
whether or not a company that asks for an H-1B truly needs an 
H-1B? Whether or not there are American workers that could be 
recruited, American college students that could be trained?
    The subject of this hearing is the cap for H-1B visas. The 
Immigration Act of 1990 set a numerical limit of 65,000 on the 
number of H-1B visas that can be used annually. In FY 2004, the 
65,000 limit was reached in mid February. On October 1, 2004, 
United States Citizenship and Immigration Services announced 
that they had already reached the 2005 cap. The FY 2006 cap was 
reached in 2005, which is even earlier.
    The question becomes where are the American workers that 
could fill these jobs, and as well, how do we assist these 
companies who are now asking for an increased cap?
    I know that the American companies can be more aggressive 
in recruiting American employees, particularly at the minority 
college campuses. And I also think that more can be done to 
retrain American workers who are being phased out of the high-
tech industry when new technology is developed.
    But these measures themselves are not likely to eliminate, 
Mr. Chairman, the need for raising the H-1B cap. The cap is 
preventing U.S. businesses from meeting their specialty 
occupation needs, and the needs are likely to increase.
    How do we bring together the synergism and need for 
employment in the United States, the outreach to the Hispanic-
serving, the historically Black colleges, and the needs, Mr. 
Chairman, of the specialty visas? And how do we reaffirm, if 
you will, legal immigration alongside of the rising debate of 
addressing the important question of regularizing, if you 
will--regularizing those who are undocumented?
    Again, we cannot leave that debate out of this question--
border security and regularizing of 11 and 12 million. But 
today, we address the question that deals with these particular 
H-1B visas. And I view an increase in the cap as a short-term 
solution to a long-term problem.
    Foreign students represent half of the U.S. graduate school 
enrollments in engineering, math, and computer science. It is 
my commitment, Mr. Chairman, to work with the panelists, to 
work with our witnesses to be able to address the questions of 
our specialty visas and our technology industry, but also 
emphasize American workers, historically Black colleges, 
Hispanic-serving colleges.
    And I'd ask the entirety of my application--excuse me, I'm 
not applying--my entirety of my statement be put into the 
record.
    And might I just close, Mr. Chairman, by indicating that 
you will have many outstanding witnesses, but I'm so delighted 
that the Congress of the United States is wise enough to secure 
a witness who is president of a college.
    Dr. Baker is president of Oakwood College, and I wanted the 
privilege of just slightly saying that he is a B.A. and Ph.D., 
but he has been working on what we call a ``millennium 
project,'' in edifying his university, his college to be more 
technologically sophisticated, training young people. And he's 
also a partner with NASA in Huntsville, Alabama.
    I'm very delighted. You will, of course, introduce him more 
extensively. But I'm very delighted of your presence here 
today, and I think you'll be a vital, an enormously vital 
component to how we deal with H-1B specialty visas and your 
testimony, along with your other witnesses.
    [The prepared statement of Ms. Jackson Lee follows in the 
Appendix]
    Ms. Jackson Lee. Mr. Chairman, I would also unanimous 
consent that a letter from the Information Technology Industry 
Council, signed by Mr. Ralph Hellman, senior vice president, 
Information Technology Industry Council, that speaks to the 
need of H-1B visas, I ask unanimous consent to extend or to 
submit this into the record.
    Mr. King. Without objection.
    Ms. Jackson Lee. Your courtesies have been most 
appreciated. Thank you very much.
    [The letter from Mr. Hellman follows in the Appendix]
    Mr. King. Thank you, the gentlelady from Texas. And safe 
travels.
    I will now recognize myself for an opening statement.
    And good morning. Since 1990, Congress has limited the 
number of visas granted through the H-1B program to non-
immigrants in specialty occupations. Since then, we have 
attempted to carefully balance the needs of our labor market 
for these skilled foreign workers with adequate protections for 
the jobs and wages of U.S. workers.
    Today, we have the opportunity to examine whether the 
current statutory cap is helping us to achieve this balance.
    The H-1B program is available to employers that petition 
for a temporary employee in a specialty occupation. The visa is 
valid for an initial period of 3 years. It may be renewed once 
for an additional 3 years. In recent years, the most frequent 
use of an H-1B visa is for computer and engineering-related 
jobs.
    Currently, H-1B visas are capped at 65,000 per year. And 
during the tech boom of the '90's, Congress raised the cap to 
195,000, but then allowed the cap to revert back to 65,000, as 
economic conditions worsened and many high-tech workers were 
facing layoffs.
    As economic conditions have improved, the numerical limit 
for H-1B visas has been reached very early in the fiscal year. 
For fiscal year 2005, the limit was reached on the first day of 
the fiscal year, and that was October 1, 2005. For fiscal year 
2006, the U.S. Citizenship and Immigration Services announced 
that it had received enough applications to hit the cap on 
August 12, 2005. On April 1st--and that's this week--the U.S. 
CIS will begin accepting petitions for fiscal year 2007.
    Congress provided additional visas in the 2004 omnibus 
appropriations legislation by exempting 20,000 individuals with 
a graduate degree from a U.S. university from the H-1B cap. 
These additional visas were used within the first few months of 
the fiscal year. And even with a lower cap, we often hear 
stories of U.S. workers being laid off, replaced by foreign 
workers on H-1B visas.
    Today, we have the opportunity to hear from such a person, 
David Huber, about his devastating experience being laid off 
and replaced by a foreign worker on an H-1B visa.
    Also distributing--also disturbing are the numerous 
accounts of experienced computer programmers and engineers who 
are unable to find good-paying jobs.
    As an American, I believe that we must take measures to 
ensure that employers first look to Americans to fill these 
positions. This raises serious questions as to whether the H-1B 
program is working as intended or whether it is, in fact, 
detrimental to American citizens looking for work in these 
specialized fields.
    Currently, only H-1B dependent employers and those with 
past labor law violations are required to certify that they 
have attempted to recruit a U.S. worker and that they have not 
displaced a U.S. worker. Perhaps Congress should consider 
requiring all employers to make these certifications. We should 
not have a visa program that allows an employer to lay off U.S. 
workers in favor of cheaper foreign labor.
    I recognize, however, that there are legitimate uses for 
the H-1B visa. The high-tech industry frequently hires 
individuals with advanced degrees in engineering and computer 
sciences. Many large companies recruit at major U.S. 
universities, but note that the majority of students in these 
programs are foreign nationals.
    Congress has attempted to address the perceived shortage of 
U.S. students in math, science, and engineering programs by 
diverting a portion of the H-1B fees charged to employers to 
educational programs for U.S. workers. Nonetheless, the high-
tech industry submits that visas are needed to keep these 
individuals in the U.S. to work.
    To remain competitive as a nation, we must continue to 
encourage younger Americans into entering the math, science, 
and engineering fields. However, we must also be careful of 
getting into the unfortunate situation where once these 
students graduate, they cannot find a job.
    When college science and engineering grads complain of hard 
times landing jobs, enrollment in these college programs drops. 
That has certainly happened since the enrollment boom of the 
years of the dot-com bubble. We must not betray American 
students by encouraging them to enter into a tough major for 
the good of their country and then offer their job to a foreign 
student once they graduate.
    I look forward to hearing from our witnesses today.
    [The prepared statement of Mr. King follows:]
    Mr. King. I'm not recognizing any Members currently present 
that might want to give an opening statement. We'll accept 
those statements into the record. And without objection, all 
Members' statements will be made a part of the record at this 
time, and I'd like to turn to the introduction of the members 
of our panel.
    [The statements of Members follow:]

  The Honorable Maxine Waters, a Representative in Congress from the 
                          State of California

    Mr. Chairman, Madame Ranking Member, thank you for holding this 
hearing. The question of whether Congress should raise the cap for this 
special class of visas is a very timely one, given the current debate 
in America about how to address the volatile situation within the 
country and at our borders. The Administration must exercise extreme 
prudence and judgment in proposing an answer to this question.
    When the Government cuts some $12 billion in federal student 
education aid funds here in America with legislation that the House 
considers right now and this week, H.R. 609, the College Access and 
Opportunity Act of 2005, it raises eyebrows when it then asks the 
question of whether the limit on the number of specialty occupation 
visas should be raised. Perhaps if we handled education funding in a 
consistent and conscientious fashion, we would not be in the current 
conundrum.
    I feel that we need to address our own policies that affect the 
amount of resources - human and monetary, available to fill our 
workforce needs before we change our immigration policy relative to 
allowing additional specialty workers.
    Thank you, witnesses, for your time, and thank you to the Chairman 
and Ranking Member for their efforts. I yield back.

    Mr. King. First member of our panel, Mr. John M. Miano, 
chief engineer, Colosseum Builders, Inc. John Miano, the 
founding chairman of the Programmers Guild and currently serves 
as a director of that organization. He currently operates his 
own computer consulting firm, Colosseum Builders, Inc., in 
Summit, New Jersey.
    Mr. Miano is an expert in computer science, having 18 years 
of experience in computer software development. He holds a 
degree in mathematics from the College of Wooster and a juris 
doctor from Seton Hall University. He has published numerous 
articles and two books on computer programming.
    Mr. Stuart Anderson, the executive director of the National 
Foundation for American Policy. In January 2003, Stuart 
Anderson began his service at the National Foundation for 
American Policy in Arlington, Virginia, where he is currently 
the executive director. Stuart Anderson has extensive 
experience in immigration policy. He began his work on 
immigration at the Cato Institute in Washington, D.C., where he 
was director of the trade and immigration studies.
    He then spent 4\1/2\ years on the Senate Immigration 
Subcommittee, serving as staff director of that Subcommittee 
under Senator Sam Brownback. Upon leaving the Subcommittee in 
August 2001, Mr. Anderson served as execute associate 
commissioner for policy and planning and counselor to the 
commissioner at the Immigration and Naturalization Services. 
He's published articles in the Wall Street Journal, New York 
Times, Los Angeles Times, among other publications.
    Mr. David Huber, information technology professional. David 
Huber is currently working on a network architecture team, 
designing a new computing data center. He has over 15 years of 
IT experience, focusing on--focusing on complex networking 
deployments and network management operations.
    He has been directly responsible for $1.4 billion in 
technology investments and business operations. Mr. Huber was 
the LAN/WAN lead network engineer for NASA's X-33 space shuttle 
project at Edwards Air Force Base. He holds a bachelor of arts 
degree from the University of Chicago.
    And Dr. Delbert W. Baker, president of Oakwood College. Dr. 
Delbert Baker became president of his alma mater, Oakwood 
College, in November 1996, where he remains to this day. Prior 
to his return to Oakwood College, Dr. Baker served in numerous 
positions at Loma Linda University in Loma Linda, California. 
He was a professor, the deputy, the director of diversity, and 
special assistant to the president of the university.
    Dr. Baker is the author of numerous scholarly articles and 
seven books. He currently serves on many boards nationally and 
locally in Huntsville, Alabama, and has received awards from 
numerous organizations, such as the United Negro College Fund 
and Oakwood College, which named him ``Alumnus of the Year.''
    It is a practice here to swear the witnesses in. Please 
stand and raise your right hand.
    [Witnesses sworn.]
    Mr. King. Let the record show these witnesses responded in 
the affirmative. Say ``I do.'' The witnesses have been sworn 
in. Thank you.
    We'll now turn to the testimony from our panel. Without 
objection, your full written testimony will be made as part of 
the record. And if you can contain your comments to the 5 
minutes, we'll be most appreciative so we can get questions 
from the Members of the Committee.
    I'll remind our witnesses that we have a series of lights, 
and the time for those lights until you see the red light is 
about a 5-minute period. And we'll be lenient here on the 5-
minute period and allow you to complete your thoughts at least. 
And as long as we don't abuse the privilege, we'll be able to 
get this message to this panel.
    So, at this time, I'd like to recognize Mr. Miano for 5 
minutes. Mr. Miano.

TESTIMONY OF JOHN M. MIANO, CHIEF ENGINEER, COLOSSEUM BUILDERS, 
                              INC.

    Mr. Miano. Thank you, Mr. Chairman.
    Imagine a father saying to his child on a Friday morning, 
``Son, I know you have a big weekend coming up. So here's 50 
bucks. Go out and have a good time.''
    The next morning, the son comes back to his father and 
says, ``Hey, Dad, I used up all of the money you gave me. Can 
you give me some more?''
    Now what does the irresponsible parent do? He gives the kid 
another 50 bucks. But what does the responsible parent do? He 
asks, ``Son, what did you do with the 50 bucks I gave you 
already?''
    Now the question before this Committee is, ``Should 
Congress raise the H-1B quota?'' But in order to get to that 
point, Congress really needs to ask, ``Where did all the visas 
go?''
    Now, in law school, I started to examine labor condition 
applications in detail for H-1B workers. And from this 
research, I can tell you what the available data says about 
where the visas are going.
    First of all, from the LCAs, we get an idea of what types 
of companies are getting the visas. The spin on the H-1B 
program is that the beneficiaries are U.S. technology 
companies, but the LCA data show something entirely different.
    According to the LCAs, very few H-1B workers go to United 
States technology leaders, and instead, the LCA data suggest 
that the overwhelming majority of H-1B workers are going to 
body shops--these are companies that specialize in contracting 
workers out to other companies--and companies, especially 
foreign companies, that specialize in moving computer work 
overseas.
    From the LCA data, we can also get an idea of the types of 
workers that are getting H-1B visas. The spin on the H-1B 
program is that it's for highly skilled labor. The LCA data 
suggests low skills and low wages.
    The LCAs, for example, give us a very good picture of 
employer prevailing wage claims. For computer programming, the 
employer prevailing wage claims on LCAs average $18,000 a year 
below the U.S. median wage for the occupation and location. And 
the wages listed on LCAs average $13,000 below the median U.S. 
wages.
    These extremely low wages--wage claims suggest most H-1B 
workers possess low skills. And this year, we have additional 
evidence of that. In matching prevailing wage claims using the 
four skill levels mandated by Congress, I found that employers 
claimed the majority of these workers were entry level, the 
very lowest skill level in the system.
    We are told that employers need H-1B workers because U.S. 
workers do not have the skills industry needs. Yet employers 
say most of these workers are in need of training. Again, the 
question before this Committee is, ``Should the H-1B quota be 
increased?'' And quite simply, the answer is no.
    The quota is the only thing that stands between the H-1B 
program and total chaos. Loopholes in the law allow U.S. 
workers to be replaced with H-1B workers. The prevailing wage 
system is a complete sham. The law limits enforcement to ensure 
most violators will not be punished. As meager as it is, the 
quota is the only real protection for U.S. workers that exists 
in the H-1B program.
    In 1998 and 2000, industry said they only needed a 
temporary increase in the H-1B quota. If they were given a 
breather, they said they'd be able to train U.S. workers, 
they'd be able to hire women for technology jobs, they'd be 
able to hire minorities for technology jobs. Instead of being 
temporary, the increased quotas created permanent dependency on 
the H-1B program, and the H-1B program has become the engine 
driving the off-shoring of U.S. technology jobs to foreign 
countries.
    And I have to wonder why Congress has felt the need to 
exercise Stalinist control over the labor market. If a labor 
shortage really existed, the free market would take care of it.
    I have many more details in my written statement and would 
be happy to answer any of your questions.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Miano follows:]

                    Prepared Statement of John Miano




    Mr. King. Thank you, Mr. Miano.
    And now the Chair will recognize Mr. Anderson for 5 
minutes.

  TESTIMONY OF STUART ANDERSON, EXECUTIVE DIRECTOR, NATIONAL 
                 FOUNDATION FOR AMERICAN POLICY

    Mr. Anderson. Thank you, Mr. Chairman.
    Despite the tremendous changes--excuse me--in the world 
economy, with modest exceptions, the U.S. immigration system 
for highly skilled professionals has not changed since 1990, 
except that it has become worse. Companies now pay hefty fees, 
endure longer waits, and submit to more regulation than in the 
past.
    American companies and their competitors are waging a 
global battle for talent, a battle complicated by the 65,000 
limit on H-1B visas that annually leaves companies waiting 
months to hire key personnel while they risk losing top people 
to foreign competitors.
    Processing delays and a 5-year backlog because of 
inadequate employment-based immigration quotas make it 
impossible to hire an individual directly on a green card. 
Therefore, without sufficient H-1B visas, skilled foreign 
nationals and international students simply could not work or 
remain in the United States.
    The stakes are high. Nearly half of all engineers, 
physicists, and computer scientists with Ph.D.'s in the U.S. 
today are foreign born. As we know, many talented people in 
this world were not born in the United States. Whether it is 
the father of modern computing John von Neumann, founder of 
Intel Andrew Grove, Internet godfather Tim Berners-Lee, or many 
others, America's openness to talented individuals, regardless 
of their place of birth, has been our great strength.
    Here's what companies find when they recruit on college 
campuses. In 2005, U.S. universities awarded 55 percent of 
master's degrees and 67 percent of Ph.D.'s in electrical 
engineering to foreign nationals. At Iowa State, University of 
Texas at Austin, and other schools listed in the testimony, 
one-half to one-third of all graduate students in computer 
science and electrical engineering are foreign nationals.
    Do we want to educate these individuals and send them out 
of the country to compete against U.S. firms? Or wouldn't it be 
better to allow these talented people to stay and create jobs 
and innovation here in America?
    The use of H-1B visas has been determined by the market. As 
the table in the testimony illustrates, when Congress raised 
the limit to 195,000 in 2002 and 2003, in both years, fewer 
than 80,000 visas were issued against the cap, leaving more 
than 230,000 unused.
    To avoid creating backlogs and long hiring delays, we 
should return to the 195,000 cap and have expanded exemptions 
for international graduate students, as in the pending Senate 
bill, which also includes necessary increases in employment-
based immigration quotas.
    In 1998, Congress sought a balance by increasing the H-1B 
cap and imposing new enforcement measures and a new $500 
training and scholarship fee, later raised to $1,500. Since 
then, employers have paid more than $1 billion in these fees, 
which have funded math and science scholarships for 40,000 U.S. 
students, hands-on science programs for 75,000 middle and high 
school students, and job training for more than 82,000 U.S. 
workers.
    Here's a quick response to criticisms of H-1B visas. First, 
the National Science Foundation and other sources show foreign-
born scientists and engineers are paid as much or more as their 
native counterparts.
    Second, H-1B professionals change jobs all the time and 
simply don't stay if they can gain higher pay elsewhere.
    Third, if U.S. companies hire based only on wages, then 
they would move all of their work outside of the United States 
since it costs $60,000 for a software engineer in Boston and 
only $7,200 for one in Bangalore.
    Fourth, foreign-born individuals are hired in addition to, 
not instead of native-born workers. They represent no more than 
5 to 10 percent at most large high-tech firms.
    Finally, one cannot conclude employers underpay H-1B visa 
holders based on prevailing wage data, since what an employer 
pays is actually contained on the I-129 form filed with the 
Immigration Service, and research shows the actual wages that 
firms pay, as required under the law, is much higher than the 
prevailing wage.
    The costs of Congress failing to increase both the H-1B cap 
and employment-based immigrant quotas, unfortunately, will be 
measured by the job creation, innovation, and research that do 
not take place in the United States. And these costs will be 
felt beyond the immediate future.
    At the 2004 Intel Science Talent Search competition, the 
Nation's premier science competition for top high school 
students, I conducted interviews to determine the immigration 
background of the 40 finalists. Listen to what I found.
    Two-thirds of the Intel Science Talent Search finalists 
were the children of immigrants. And even though new H-1B 
professionals each year represent only 0.03 percent of the U.S. 
population, more of the children have parents who entered the 
country on H-1B visas than had parents born in the United 
States.
    In other words, if critics had their way, most of the 
coming generation's top scientists would not be here in the 
United States today because we never would have allowed in 
their parents.
    Thank you.
    [The prepared statement of Mr. Anderson follows:]

                 Prepared Statement of Stuart Anderson

    Mr. Chairman, thank you for the opportunity to testify today.
    U.S. companies and their competitors are waging a global battle for 
talent. American companies hire and recruit globally. In some cases, 
this means hiring foreign-born individuals on H-1B temporary visas, 
many times off U.S. college campuses as part of the normal recruitment 
process. Some assert the only reason U.S. employers would hire H-1B 
professionals is because they would work more cheaply than Americans. 
But this fails to grasp that international students form a majority of 
graduate students in science and engineering on many college campuses. 
Moreover, as Members of the Committee know well, there are many 
talented people in this world who were not fortunate enough to be born 
in the United States.
    Whether it is the father of modern computing John von Neumann, 
founder of Intel Andrew Grove, Internet godfather Tim Berners-Lee or 
countless others, America's openness to talented individuals--
regardless of their place of birth--has been our great strength.
    In 2005, U.S. universities awarded 55 percent of Masters degrees 
and 67 percent of PhDs in electrical engineering to foreign nationals, 
according to the American Association of Engineering Societies.
    Below is the percentage of foreign nationals enrolled among full-
time students in graduate programs at universities of interest to 
Members of the subcommittee:
    Indiana University: computer science (63% foreign); electrical 
engineering (71%).
    University of Texas at Austin: computer science (67%); electrical 
engineering (76%).
    Iowa State: computer science (73%); electrical engineering (72%).
    Rice University: computer science (67%); electrical engineering 
(56%).
    University of Virginia: computer science (55%); electrical 
engineering (64%).
    University of Southern California: computer science (80%); 
electrical engineering (78%).
    Stanford University: computer science (41%); electrical engineering 
(63%).
    University of Arizona: computer science (57%); electrical 
engineering (86%).
    University of Massachusetts: computer science (50%); electrical 
engineering (68%). (Source: National Science Foundation)
    Do we want to educate these individuals and send them out of the 
country to compete against U.S. firms, or wouldn't it be better to 
assimilate this talent and allow them to create jobs and innovations 
here in America?
    Since long regulatory delays and inadequate employment-based 
immigration quotas make it virtually impossible to hire an individual 
directly on a green card (permanent residence), the availability of H-
1B visas is crucial, otherwise skilled foreign nationals, particularly 
graduates of U.S. universities, could not work or remain in the United 
States. It can take often four years or more for a U.S. employer to 
complete the process for sponsoring a skilled foreigner for permanent 
residence due to U.S. government processing times and numerical 
limitations. No employer or employee can wait four years for the start 
of a job. It is worth noting that America also gains considerably from 
foreign nationals educated outside the United States. Such individuals 
bring with them substantial human capital that America essentially 
receives without cost.
    The annual cap on H-1B professionals, first established in 1990, is 
inadequate. Since 1996, the 65,000 annual limit on H-1B visas has been 
reached in almost every year. This shortfall compels employers either 
to wait several months for the next fiscal year to employ prospective 
employees in the United States, to hire new people outside the country, 
or to lose them to foreign competitors. Many companies concede that the 
uncertainty created by Congress' inability to provide a reliable 
mechanism to promptly hire skilled professionals has led to placing 
more human resources outside the United States. In this respect, the H-
1B limitations imposed by Congress are most damaging to young, fast-
growing companies that do not possess the option of placing personnel 
overseas.
    One such company is MagiQ Technologies in New York, selected by 
Scientific American as one of the nation's most innovative companies 
for its breakthroughs in quantum cryptography. Four H-1B visa holders 
work on products that help support the 20-person firm but international 
competition for top talent is brutal. ``We've lost the chance to hire 
top people in the field because of the H-1B cap being reached. That 
made it easier for our foreign competitors,'' said company CEO Robert 
Gelfond. He also notes that even when new hires are not lost, waiting 
several months for key personnel is expensive and can cost firms dearly 
in the marketplace.

          THE IMMIGRATION SYSTEM HAS GROWN WORSE FOR EMPLOYERS

    Despite the increased competition for talent and the tremendous 
changes in the U.S. and world economy over the past 16 years, with 
modest exceptions, the U.S. immigration system for high-skilled 
professionals has not changed since 1990--except that it has become 
worse. Companies now pay hefty fees, endure longer waits, and submit to 
more restrictive regulations than in the past.
    Prior to 1990, Congress placed no numerical limitation on the 
number of skilled foreign nationals employers could hire in H-1 
temporary status. In the Immigration Act of 1990, Congress arbitrarily 
chose an annual cap of 65,000 and introduced several requirements in 
establishing a new H-1B category.
    It is clear that nobody considers the 65,000 annual limit on H-1Bs 
a sacrosanct number, as Congress has changed this limit at least three 
times in the past 8 years. In FY 2006, the immigration service stopped 
taking new H-1B applications in August 2005. Even the recently added 
20,000 exemption from the H-1B cap for those who graduated with an 
advanced degree from a U.S. university was exhausted by January 2006.

                THE MARKET HAS DETERMINED H-1B VISA USE

    As the table below shows, the market has determined the use of H-1B 
visas. When Congress raised the limit to 195,000 a year in FY 2002 and 
2003, in both years fewer than 80,000 visas were issued against the 
cap, leaving 230,000 H-1B visas unused in those two years. Firms did 
not hire more H-1Bs just because the cap was higher.
    Any cap should be set high enough to avoid creating backlogs and 
long hiring delays. Returning to the 195,000 annual limit, with an 
uncapped exemption for graduates with an advanced degree from a U.S. 
university, would be a sensible policy. If the limit is lower than 
195,000, the law should provide for increasing the ceiling by 20 
percent following any year the annual cap is reached, as proposed in 
the Senate. Past legislation increased enforcement and taxed U.S. 
employers for each new H-1B professional hired, funding scholarships, 
science programs, job training, and anti-fraud activities. Having 
established this framework, the goal of new legislation should be to 
provide certainty for employers and prevent the nearly annual scramble 
in Congress to address H-1B visas.



  SCHOLARSHIPS, K-12 PROGRAMS AND JOB TRAINING FOR U.S. STUDENTS AND 
                                WORKERS

    In 1998, Congress wanted to balance increased access to skilled H-
1B professionals with greater educational and training opportunities 
for U.S. students and workers in science and engineering. The American 
Competitiveness and Workforce Improvement Act of 1998 (Public Law 105-
277) established the H-1B Nonimmigrant Petitioner Account funded by a 
$500 fee (now $1,500) on each new petition (and the first renewal of H-
1B status) for H-1Bs sponsored by U.S. companies.
    Since 1999, employers have paid more than $1 billion in such fees. 
The money has provided National Science Foundation (NSF) scholarships 
for approximately 40,000 students. The amount of the scholarship has 
risen from $3,125 to $10,000. An early evaluation of the NSF 
scholarships conducted by the General Accounting Office (GAO) 
concluded: ``The program is attracting a higher proportion of women and 
minorities than are included among computer science, engineering, and 
mathematics degree awardees.'' The GAO also interviewed student 
recipients. ``One student told us that even though she excelled in math 
in high school, she only considered becoming a math major after she 
learned about the scholarship opportunity.''
    H-1B fees paid by employers also have funded hands-on science 
programs for middle and high school students, most notably Information 
Technology Experiences for Students and Teachers (ITEST) through the 
National Science Foundation. ``The ITEST portfolio consists of 53 local 
projects that allow students and teachers to work hand-in-hand with 
scientists and engineers on extended research projects, ranging from 
biotechnology to environmental resource management to programming and 
problem-solving.'' According to the National Science Foundation, 
``ITEST impacts 75,000 students (grades 6-12), 3,000 teachers and 1,300 
parent/caregivers.''
    More than 82,000 U.S. workers and professionals have completed 
training through programs funded by the H-1B fees as of December 31, 
2005, according to the Department of Labor Employment and Training 
Administration. In addition, the Bush Administration recently has used 
the H-1B fees to provide multi-year grants to communities for training 
and economic revitalization. Through the WIRED (Workforce Innovation in 
Regional Economic Development) initiative, the U.S. Department of Labor 
is providing $195 million in grants to thirteen regional economies.
    These totals do not include the impact of property taxes paid by 
U.S. companies, which are a key source of public school funding, nor do 
they include the individual efforts and donations made by American 
firms and entrepreneurs. For example, the Intel Corporation spends $100 
million annually on math and science education in the United States. 
The Oracle Corporation donated $8.5 million in cash and $151 million 
worth of software to schools around the country in 2004. The Bill and 
Melinda Gates Foundation, funded from the sale of Microsoft stock by 
founder Bill Gates, has spent more than $2.6 billion since its 
inception on grants to improve education in the United States.
    In an important respect, Congress has not upheld its part of the 
deal made in 1998. At the time, employers received more than 100,000 H-
1B visas a year for three years, while enduring new enforcement 
measures and the imposition of a $500 fee. Today, the enforcement 
measures have been made permanent and the fee has tripled to $1,500, 
plus a new $500 ``anti-fraud'' fee. Meanwhile, the H-1B cap has dropped 
back to 65,000, albeit with some exemptions.

  BLACK AND FEMALE REPRESENTATION IN SCIENCE AND ENGINEERING JOBS HAS 
                      MORE THAN DOUBLED SINCE 1980

    One argument made in the past against raising the H-1B cap is that 
foreign-born scientists and engineers may ``crowd out'' women and 
minorities seeking to enter these fields. Data from the National 
Science Foundation show this is not the case. Between 1980 and 2000, 
the share of black Americans in science and engineering occupations 
more than doubled from 2.6 percent to 6.9 percent, as did the share of 
women, from 11.6 percent to 24.7 percent. This happened at the same 
time that ``the percentage of foreign-born college graduates (including 
both U.S. and foreign degreed) in S&E jobs increased from 11.2 percent 
in 1980 to 19.3 percent in 2000,'' according to the National Science 
Foundation.

                    ADDRESSING CONCERNS ABOUT H-1BS

    Some argue that the entry of H-1B visa holders harms some U.S. 
workers. This is a questionable assertion. Yet even if this were true, 
it would not justify preventing all American employers from gaining 
access to skilled foreign-born professionals in the United States or 
denying opportunity to these highly educated individuals, particularly 
international students who graduate from American universities. Leaving 
immigration aside for one moment, we know that the competition created 
by new businesses, new college graduates, new high school graduates, 
and imports of goods and services all may affect someone. But we do not 
try to block all of these because we have learned the cost of trying to 
prevent competition invariably far outweighs the benefit.
    It is a dim view of humanity to assume that opportunity for some 
must mean misery for others. I'll summarize responses to some of the 
criticisms of H-1B visas.
    First, the National Science Foundation and other sources show 
foreign-born scientists and engineers are paid as much or more as their 
native counterparts.
    Second, H-1B professionals change jobs all the time. This is 
confirmed by government data, employers, and attorneys. In fact, 
generally speaking, the majority of H-1B hires by large companies these 
days first worked for other employers.
    Third, the back wages owed to H-1B employees among the small number 
of employers whose actions warranted investigation and government-
imposed penalties average less than $6,000 per employee, no more than 
the typical government and legal fees paid by most employers to hire H-
1B visa holders. And among those employers, few if any are well-known 
companies. Generally, of the small number of violations no more than 10 
to 15 percent of H-1B violations in a year are found to be ``willful'' 
by the Department of Labor, indicating the extent of abuse is limited.
    Fourth, if companies simply wanted to obtain services based only on 
wages, then U.S. companies would move all of their work outside the 
United States, since the median salary for a computer software engineer 
is $7,273 in Bangalore and $5,244 in Bombay, compared to $60,000 in 
Boston and $65,000 in New York, according to the Seattle-based market 
research firm PayScale.
    Fifth, foreign-born individuals are hired in addition to--not 
instead of--native-born workers. The evidence indicates that native-
born and foreign-born work together in companies all across America. In 
the nation's largest technology companies, typically no more than 5 to 
10 percent of the employees work on H-1B visas at any one time. There 
are very few businesses with even a majority of workers in H-1B status 
and, indeed, any firm with more than 15 percent of its workforce made 
up of H-1Bs is subjected to more stringent labor rules under U.S. law.
    Finally, it is not possible to conclude employers underpay H-1B 
visa holders based on prevailing wage data filed with the Department of 
Labor. Under Section 212(n)(1) of the Immigration and Nationality Act, 
an employer hiring an individual in H-1B status must pay at least ``the 
actual wage level paid by the employer to all other individuals with 
similar experience and qualifications for the specific employment in 
question'' or ``the prevailing wage level for the occupational 
classification in the area of employment, whichever is greater . . .'' 
Therefore, any analysis that relies solely on prevailing wage data is 
inherently flawed.
    The wage data maintained by the Department of Labor are simply 
listings of the minimum an employer can pay an H-1B professional for a 
particular job. The data showing what an employer actually pays an H-1B 
visa holder are contained on the I-129 forms filed with U.S. 
Citizenship and Immigration Services (USCIS). Unlike the prevailing 
wage data at DOL, the forms filed with USCIS are not normally available 
to the public. To examine this issue, the National Foundation for 
American Policy asked a respected law firm to select a random sample of 
H-1B cases from among its client base. They represented different 
occupations but the vast majority of the H-1Bs were in high technology 
fields. Among the 100 randomly selected cases, the average actual wage 
was more than 22 percent higher than the prevailing wage. This is not 
meant to be definitive proof that actual wages are always, on average, 
22 percent higher than prevailing wages. However, it does show, along 
with the other evidence, that any analysis utilizing prevailing wage 
data to claim H-1B professionals are underpaid is not reliable.

       RESEARCH SHOWS NO NEGATIVE IMPACT ON NATIVE PROFESSIONALS

    Critics make assertions about the wages of H-1B professionals not 
out of concern for the H-1B visa holders but because the critics 
believe the competition harms native workers. As noted, it is possible 
that a policy that results in increased competition can affect some 
people but remain good policy nonetheless. For example, a moratorium on 
opening new restaurants in an area would help existing restaurant 
owners and their employees but would be bad for consumers and 
entrepreneurs who live nearby, as well as workers seeking opportunity. 
For that reason such protectionist policies are rare in America and 
their rarity is a primary reason for America's economic success 
relative to other nations. (See William W. Lewis, The Power of 
Productivity, University of Chicago Press, 2004.)
    Still, there is little evidence that native information technology 
(IT) workers are harmed by an openness towards H-1B professionals. A 
study by Madeline Zavodny, a research economist at the Federal Reserve 
Bank of Atlanta, found, ``H-1B workers [also] do not appear to depress 
contemporaneous earnings growth.'' As to unemployment, the study 
concluded that the entry of H-1B computer programmers ``do not appear 
to have an adverse impact on contemporaneous unemployment rates.'' The 
study also noted that some results ``do suggest a positive relationship 
between the number of LCA [Labor Condition] applications and the 
unemployment rate a year later.'' Zavodny concluded: ``None of the 
results suggest that an influx of H-1Bs as proxied by Labor Condition 
Applications filed relative to total IT employment, lower 
contemporaneous average earnings. Indeed, many of the results indicate 
a positive, statistically significant relationship.'' This would mean 
H-1B employment is actually associated with better job conditions for 
natives, according to the study, which could be because H-1B 
professionals are complementary to native professionals.

          RESEARCH ON THE WAGES OF FOREIGN-BORN PROFESSIONALS

    Under the law, employers hiring H-1B professionals must pay the 
greater of the prevailing wage or ``the actual wage level paid by the 
employer to all other individuals with similar experience and 
qualifications for the specific employment in question.'' Employers 
sponsoring individuals for an employment-based immigrant visa must also 
pay employees at least the market wage.
    Research by Paul E. Harrington, associate director of the Center 
for Labor Market Studies at Northeastern University, shows foreign-born 
and native professionals earn virtually identical salaries in math and 
science fields. Salaries in computer or math sciences were actually 
higher for the foreign-born among bachelor degree holders and doctoral 
degree holders and the same for recipients of master's degrees. He 
found similar salaries for natives and foreign-born at all three levels 
in life sciences, as well as at the doctoral level in engineering, and 
a greater edge for natives at the bachelor and master's level for 
engineering.
    National Science Foundation data indicate that foreign-born 
professionals actually earn more than their native counterparts when 
controlled for age and the year a science or engineering undergraduate, 
master's, or doctorate degree is earned. The National Science 
Foundation reports: ``Because foreign-born individuals in the labor 
force who have S&E (science and engineering) degrees are somewhat 
younger on average than natives, controlling for age and years since 
degree moves their salary differentials in a positive direction--in 
this case, making an initial earnings advantage over natives even 
larger--to 6.7 percent for foreign-born individuals with S&E bachelor's 
degrees and to 7.8 percent for those with S&E PhDs.''

  ENFORCEMENT AND FINES SHOW LITTLE EVIDENCE OF UNDERPAYMENT OF H-1BS

    One way to obtain an upper-bound estimate of possible underpayment 
of wages to H-1B professionals is to examine Department of Labor (DOL) 
enforcement actions against employers. The evidence indicates that even 
among the highly stratified sample of the relatively small number of 
employers whose actions warranted investigation and government-imposed 
penalties (136 nationwide in 2004), the amount of back wages owed by 
even those employers is small. In fact, on average, it is no more than 
the typical government and legal fees paid by most employers to hire H-
1B visa holders.
    Between 1992 and 2004, in all DOL investigations, the average 
amount of back wages owed to an H-1B employee was $5,919. While it is 
true that the Department of Labor's enforcement of H-1Bs is primarily 
complaint-driven (though Congress has provided a mechanism for self-
initiated DOL investigations), it is telling that among the cases 
investigated relatively few violations have been found to be labeled 
``willful'' and/or result in debarment. DOL found employers either 
committed paperwork violations or misread employer obligations in a 
non-willful manner in the vast majority of the investigations 
conducted. In FY 2004, DOL found willful violations in only 11 percent 
(15 of 136) of its investigations that became final.
    The violations typically found over the past dozen years rarely 
seem to be committed by any well-known companies. Of the $4.8 million 
owed in back wages in 2004, more than half (53 percent) came from 
findings against just 7 companies, none of whom are household names.

              EMPLOYER LEGAL AND PROCESSING FEES FOR H-1BS

    Under the law, U.S. employers are obligated to pay H-1B 
professionals the same wage as ``all other individuals with similar 
experience and qualifications for the specific employment in 
question.'' But unlike with a native-born worker, the hiring costs to 
an employer do not end with the acceptance of a job offer. To hire a 
foreign national on an H-1B visa a U.S. employer must incur the 
following costs: approximately $2,500 in legal fees; $1,500 training/
scholarship fee; $1,000 ``premium processing'' fee (not required but 
routinely used to overcome long processing times); a new $500 antifraud 
fee; a $190 immigration service fee; around $125 in additional 
incidental costs (Federal Express, etc.), and a $100 visa fee. These 
combined costs total $5,915.
    While legal fees could be higher or lower depending on the law firm 
and the relationship with the employer, these figures do not include 
relocation costs, tax equalization, or additional in-house human 
resources costs associated with the extra work involved in employing 
foreign nationals. Nor do the costs include the expense of 
approximately $10,000 that can be incurred by sponsoring a foreign 
national for permanent residence (a green card), which many large 
technology companies, in particular, will do. Critics rarely take into 
account that companies incur many additional expenses beyond simply the 
wages paid to H-1B visa holders.

                H-1B VISA HOLDERS POSSESS LABOR MOBILITY

    While the Department of Labor is unlikely to catch all underpayment 
of wages, the greater protection for both H-1B professionals and other 
workers is the freedom to change employers and the competition for 
their services. A myth has been perpetuated that H-1B visa holders are 
``indentured servants.'' This is far from the truth. A sampling of U.S. 
employers and immigration lawyers found that individuals on H-1B visas 
change companies frequently. A number of S&P 500 companies related that 
the majority of their H-1B hires first worked for other employers. 
Independent immigration attorneys confirmed this. H-1B visa holders are 
individuals who understand the marketplace, exchange information with 
others in the field, and are highly sought by employers. In fact, 
Congress made it easier for those in H-1B status to change jobs by 
allowing movement to another employer before all paperwork is 
completed.
    Data from the Department of Homeland Security show that in FY 2003 
more H-1B applications were approved for ``continuing'' employment than 
for initial employment. While continuing employment also includes H-1B 
professionals receiving an ``extension'' to stay at the same employer 
for an additional three years, anecdotal evidence indicates most 
``continuing'' employment involves an H-1B visa holder changing to a 
new employer.
    Critics do not explain why H-1B professionals who are said to be 
underpaid would remain en masse with their employers when they could 
seek higher wages with competing firms. Some argue that H-1B visa 
holders sponsored for green cards are reluctant to change employers 
because they will lose their place in the queue for labor certification 
and permanent residence. To the extent this problem persists the 
solution is to:

        1)  Streamline the labor certification process (progress has 
        been made via DOL's new PERM system).

        2)  Eliminate the labor certification backlog.

        3)  Allow premium processing (employers paying an extra fee) to 
        speed green card processing at the immigration service.

        4)  Reduce the employment categories that require labor 
        certification.

        5)  Expand the annual allotment of employment-based immigrant 
        visas.

    Major U.S. employers have supported such reforms, some of which 
were included in last year's Senate-passed budget bill, though the 
measures failed to become law by not surviving the reconciliation 
process with the House of Representatives.

                       NOT A FIXED NUMBER OF JOBS

    Two misconceptions about immigration and labor markets affect 
people's understanding of high-skilled migration. First, is the ``lump 
of labor'' fallacy, or the belief only a fixed number of jobs exist in 
an economy, which would mean that any new entrant to the labor market 
would compete with existing workers for the same limited number of 
jobs. As the Wall Street Journal (February 4, 2006) noted recently 
about the U.S. economy, since ``May of 2003, just under five million 
jobs have materialized. That is the equivalent of a new job for every 
worker in New Jersey.'' The number of jobs available in America is not 
a static number, nor is the amount of compensation paid to workers 
fixed. Both grow based on several factors, including labor force 
growth, technology, education, entrepreneurship, and research and 
development.
    Within sectors, jobs increase or decrease from year to year based 
on product demand and other factors. However, it is easy to ignore that 
people work today in companies and industries that did not even exist 
in the early 1990s. ``When I was involved in creating the first 
Internet browser in 1993, I can tell you how many Internet jobs there 
were, there were 200. I can tell you how many there are now, there's 
two million now,'' said Marc Andreessen, a founder of Netscape.
    Job creation is also worth considering. Indian and Chinese 
entrepreneurs have founded nearly one-third of Silicon Valley's 
technology companies, according to research by University of 
California, Berkeley professor Annalee Saxenian. Given our immigration 
system, one can surmise a majority entered on H-1B visas. She writes, 
``Silicon Valley's new foreign-born entrepreneurs are highly educated 
professionals in dynamic and technologically sophisticated industries. 
And they have been extremely successful . . . By 2000, these companies 
collectively accounted for more than $19.5 billion in sales and 72,839 
jobs.''
    While nobody wishes anyone to lose a job, it is a common phenomenon 
in America, and one that cannot be blamed on H-1Bs, L-1s, or any other 
visa category. As Dallas Federal Reserve Bank economist W. Michael Cox 
and his colleague Richard Alm have explained, ``New Bureau of Labor 
Statistics data covering the past decade show that job losses seem as 
common as sport utility vehicles on the highways. Annual job loss 
ranged from a low of 27 million in 1993 to a high of 35.4 million in 
2001. Even in 2000, when the unemployment rate hit its lowest point of 
the 1990's expansion, 33 million jobs were eliminated.'' Cox and Alm 
further note, ``The flip side is that, according to the labor bureau's 
figures, annual job gains ranged from 29.6 million in 1993 to 35.6 
million in 1999. Day in and day out, workers quit their jobs or get 
fired, then move on to new positions. Companies start up, fail, 
downsize, upsize and fill the vacancies of those who left . . .'' (The 
New York Times, November 7, 2003) While it is understandable why 
individuals come before Congress and plead to prevent competition for 
their company or employment category, attempts to limit competition do 
far more harm than good, as we have seen in countries with highly 
regulated labor markets.

                 REFORM OF EMPLOYMENT-BASED IMMIGRATION

    Regardless of what action Congress takes on the H-1B visa cap, 
there will remain a glaring deficiency in U.S. immigration policy if no 
changes are made to the employment-based immigration quotas. Simply 
put, the current 140,000 annual quota for employment-based immigration 
is inadequate. The State Department's Visa Bulletin for April 2006 
shows that an employer would have needed to submit an immigration 
application five years ago to obtain a green card today for a 
professional in the employment-based third-preference category. Visa 
numbers are current only for those who submitted their paperwork by May 
2001 (and that wait is even longer for nationals of India). If Congress 
fails to address this issue, then the situation will grow worse each 
year.
    To help ensure that outstanding international graduate students and 
other highly skilled individuals can stay to work in America, 
legislation in the Senate would increase the annual allotment of 
employment-based immigrant visas (green cards) and provide exemptions 
from the immigration quota for those with advanced degrees in science 
and engineering from U.S. universities who work three years in the 
United States prior to their application for adjustment of status. It 
also would provide greater flexibility for international graduate 
students in science and engineering seeking employment after graduation 
and would eliminate the requirement that such individuals must prove 
they will not stay or work in the United States when first applying for 
their student visa. This last provision would be a logical extension of 
the law Congress passed in 2004 to exempt up to 20,000 international 
graduate students from being counted against the annual limit on H-1B 
visas.
    If the annual depletion of H-1B visas or the lack of green cards in 
the employment categories cause international students to believe they 
will not be able to work in the United States, then many will stop 
coming and will seek opportunities elsewhere. That would be a 
significant blow to U.S. companies and innovation in science and 
technical fields.
    It is my understanding that some critics of H-1B visas favor at 
least some reforms aimed at increasing access to green cards for 
skilled professionals. Necessary reforms would include speeding or 
eliminating where possible labor certification. The Bush Administration 
can begin offering employers the option to pay an extra fee for quicker 
immigration processing--30 days, rather than the current long delays. 
Combined with quicker processing times for labor certification at the 
Department of Labor, this would allow U.S. employers to hire highly 
sought after individuals directly on green cards--something impossible 
to do today. The ability to hire high skilled personnel directly on 
green cards would provide U.S. companies with a significant competitive 
advantage over their foreign competitors. But Congress must increase 
the quota for employment-based immigrant visas for American firms to 
gain this competitive edge.

                               CONCLUSION

    The costs of Congress failing to increase both the H-1B cap and 
employment-based immigrant quotas, unfortunately, will be measured by 
the job creation, innovation, and research that do not take place in 
the United States. And these costs will be felt beyond the immediate 
future.
    At the 2004 Intel Science Talent Search, the nation's premier 
science competition for top high school students, I conducted 
interviews to determine the immigration background of the 40 finalists. 
The results were astounding. Two-thirds of the Intel Science Talent 
Search finalists were the children of immigrants. And even though new 
H-1B visa holders each year represent only 0.03 percent of the U.S. 
population, it turns out more of the children (18) had parents who 
entered the country on H-1B visas than had parents born in the United 
States (16). In other words, if critics had their way, most of the 
coming generation's top scientists would not be here in the United 
States today--because we never would have allowed in their parents.

    Mr. King. Thank you, Mr. Anderson.
    Now we'll recognize Mr. Huber for 5 minutes.

TESTIMONY OF DAVID HUBER, INFORMATION TECHNOLOGY PROFESSIONAL, 
                          CHICAGO, IL

    Mr. Huber. Mr. Chairman, Members of the Committee, I am 
David Huber, an IT professional whose life has been devastated 
by the H-1B program.
    I am a University of Chicago graduate with more than 15 
years of experience specializing in high-end complex networking 
deployments and network management operations. I have been 
directly responsible for about $1.4 billion in technology 
investments and/or related business operations.
    My professional training includes Ameritech carrier 
broadband technologies, Cisco networking, Sun UNIX server 
technologies, Microsoft server networking, Novell networking, 
and Cisco Voice over Internet training.
    I'm now working with a network architecture team on a new 
computing data center buildout project. When I graduated, savvy 
people told us that America needed a limitless supply of 
talented, innovative engineers for the emerging high-tech 
world. And for a while, it did.
    During the 1990's, I held a series of increasingly 
important and difficult jobs. In 1999, I was hired as a 
consultant to work as a lead LAN/WAN network engineer for 
NASA's X-33 space shuttle project at Edwards Air Force Base. 
These credentials show that I'm a highly qualified network 
engineer. When you discuss America's need for highly trained, 
innovative workers and thinkers, I am one of them. Or at least 
I was, until 2002.
    In mid 2002, I approached Bank One, now JPMorgan Chase, 
about working in network operations in Chicago. After receiving 
assurances I was within salary range for experienced 
technologists, a director told me that the job I was interested 
in paid about $30,000 less than what I had discussed with his 
colleague. I was totally perplexed by this sudden and 
unexpected reduction in wages.
    I know now, by looking at their Labor Conditions 
Applications, that Bank One was hiring in mid 2002, just not 
hiring Americans. In 2002, Bank One received permission from 
the Department of Labor to hire 33 H-1B workers, 14 of whom 
were to work in Chicago, where I would have worked. These 
included jobs--these included jobs I was qualified to do.
    At about the same time I was offered a job for $30,000 less 
than market rates, Bank One was telling the U.S. Government 
that they could not find qualified Americans to do the type of 
work I was already doing. One year later, Bank One got the go-
ahead from the DOL to hire 120 H-1B workers, again in jobs that 
I'm qualified to do.
    In May 2003, I was hired as a network consultant at ComEd, 
Chicago's utility company, to manage their communications 
network. This was not an entry-level position, but a senior-
level network management position. Three months after being 
hired, I was replaced. My job and new positions were filled by 
visa workers.
    I met my replacement and helped train him. From talking to 
them, I learned that none of them were U.S. citizens, nor were 
they employed by ComEd. Two were from InSource Partners, a job 
shop located in Houston that specializes in placing foreign 
technical workers at American firms, including Bank One, where 
I had previously applied. One of the men confirmed that he had 
been hired for about one-third less than my salary.
    At both Bank One and ComEd, those hired were less qualified 
than I was. They had less experience and had never managed a 
project before. They also barely spoke English and lacked the 
business demeanor necessary for that level of responsibility.
    The ability to communicate is an essential part of the work 
I did, and my replacements could not communicate. This does not 
disparage them as individuals. After all, my Mandarin is sort 
of lousy. But it does call into question the decision to 
replace me with them.
    When I hear companies complain that they can't find 
qualified Americans to fill high-tech jobs, I think of my 
replacements and wonder exactly what qualifications they are 
looking for.
    There is another, more troubling aspect to my experience at 
ComEd. Two of the three individuals who replaced me were from 
China. As part of my job, I had access to all the data 
communication switches that control the electrical grid for the 
Chicago area. Anyone with this access could shut down the entre 
telecom operations for the power company and possibly the power 
grid itself.
    It is very likely that my replacements will return to 
China, taking with them detailed knowledge about the inner 
workings of our electrical grid system. After the recent 
controversy over our ports, I can't believe that Congress 
thinks this is a good idea.
    I'm a highly qualified network administrator with decades 
of professional experience and skills that are as current as 
anyone in the country. Yet between the summer of 2002 and 
January 2006, I worked for about 6\1/2\ months. After depleting 
my savings, I had to declare bankruptcy and was almost 
homeless.
    During the same time, Congress allowed companies to hire 
over 300,000 foreign workers on H-1B visas because companies 
claimed they could not find qualified Americans. I am here 
today to tell you that this claim is not true.
    There are thousands of unemployed Americans with the 
skills, drive, and creativity needed to thrive in the current 
marketplace. I know because I was one. Yet too many of us 
cannot find jobs because companies are turning to H-1B workers 
as a first choice before even advertising positions to 
Americans.
    I would like to close by pointing out that the signers of 
the Declaration of Independence said that they would mutually 
pledge to each other their lives, their fortunes, and their 
sacred honor. The citizens of these United States are asking 
that the political and business leadership in this country live 
up to that pledge and not allow the lives and fortunes of their 
fellow American citizens to be compromised by these worker visa 
programs.
    Thank you for giving me an opportunity to be heard today 
and to share my story with you. I hope it will help you better 
understand the real H-1B program.
    [The prepared statement of Mr. Huber follows:]

                   Prepared Statement of David Huber

    Mr. Chairman and distinguished members of the House Judiciary 
Committee's Subcommittee on Immigration, Border Security and Claims, my 
name is David Huber and I am an Information Technology Network 
Professional who has first-hand experience with the H-1B visa program. 
I am here, not as an expert on how the H-1B program is supposed to 
work. I am not an economist who can recite all of the benefits the H-1B 
program is supposed to be bringing to our country. Rather, I am here 
today as an American citizen and an engineer whose life has been 
devastated by that program.
    Before I get to my experiences with the H-1B program, I want to 
give you some background about myself. I am a University of Chicago-
educated IT professional with more than fifteen years of experience, 
specializing in high-end, complex networking deployments, and network 
management/operations. I have been hands-on, directly responsible for 
about $1.4 Billion in technology investments and business operations. 
Currently, I am working with a network architecture team on a new 
computing data center build-out project.
    In order to rise to this level in my chosen profession, I had to 
make tremendous short-term financial and time-intensive sacrifices to 
educate myself and prepare myself for the jobs of the future in our 
American economy that was changing into a knowledge-intensive, high-
tech service economy. We all read about these changes and predictions 
throughout the 1970s and 1980s. I knew that if I wanted to be able to 
participate in such an economy, I would have to be college-educated, 
and be prepared to do a lifetime of constant learning.
    So, when I knew my parents didn't have the money to pay for my 
college, worked many jobs to put myself through college, including 
working as an UPS dockworker for six years. I went back to college at 
the University of Chicago, earning a BA in 1988. I worked one to three 
jobs while pursuing my degree, including several computing jobs at the 
University. I also worked extensively with pre-Web electronic 
publishing before moving into networking technologies. My professional 
training has included Ameritech carrier broadband technologies; Cisco 
networking; Sun UNIX server technologies; Microsoft server networking; 
Novell networking; EMC SAN/NAS training; Cisco Voice over Internet 
Protocol training.
    When I graduated, savvy people thought that working in high tech 
would be a certain ticket to prosperity. We were told that America 
needed a limitless supply of talented, innovative high-tech engineers 
for the emerging high-tech world. And for a while, it did.
    During the 1990's I held several increasingly difficult and 
important jobs. In 1999 I was hired as a consultant to work as the lead 
LAN/WAN network engineer for NASA's X-33 space shuttle project (ground 
launch network) at Edwards Air Force Base. This was a joint $1 billion 
Skunkworks/NASA project which I took over and managed, successfully 
implementing a new IP addressing system to integrate the launch network 
with NASA's intranet. I am highlighting this to demonstrate that I was, 
and still am, among the top network engineers in the country. When you 
discuss America's need for highly-trained, highly-skilled innovative 
workers and thinkers, I am one of them. Or, at least I was until 2002.
    In early 2002, I approached Bank One (now JP Morgan Chase) about 
working in Network Operations or Planning in Chicago. After receiving 
assurances that I was within the salary range for experienced 
technologists, an HR director in Delaware told me that the job I was 
interested in paid about 30K less than what I had discussed with his 
colleague in Ohio. I was totally perplexed by this sudden and 
unexpected reduction in wages.
    It took me a year to find out why the Bank One job didn't work out. 
It turns out that the company had filled the position with a non-
American worker, hired through a job-shop.
    I have since learned more about Bank One. The Labor Conditions 
Applications (LCAs) filed by the bank show that they were hiring in 
mid-2002, just not hiring American citizens. In 2002 Bank One received 
permission from the Department of Labor to hire 33 H-1B workers, 14 of 
whom were to work in Chicago where I would have worked. These included 
Technology Project Managers and Applications Development Analysts--jobs 
that I was, and am, qualified to do. At about the same time I was 
offered a job for $30,000 less than market rates, Bank One was telling 
the U.S. government that they could not find qualified Americans to do 
the type of work I was already doing.
    One year later, Bank One got the go ahead from the Department of 
Labor to hire another 120 H-1B workers, most in technology positions, 
again in jobs that I am qualified to do. They still had my resume on 
file.
    In May 2003 I was hired as a network consultant at Commonwealth 
Edison, the power utility company responsible for the electrical grid 
covering most of the Chicago metropolitan area. I was hired to manage 
their communications network, including the systems in their 
headquarters in downtown Chicago. This was not an entry-level position, 
but a senior-level systems network management position.
    Three months after being hired, I was replaced. Com Ed brought in 
three new employees to run their network, replacing myself. I met my 
replacements and helped train one of them. I do not blame them for what 
happened.
    From talking to them, I learned that none of them were U.S. 
citizens. Nor were they employed by Com Ed. Two were from InSource 
Partners, a job shop located in Houston that specializes in placing 
foreign technical workers at American firms. One of them confirmed that 
the three had been hired for about one-third less than my salary.
    In both instances at Bank One and Com Ed those hired were less 
qualified than I was. They had less experience and had never managed a 
project before. They also barely spoke English and lacked the 
temperament and business demeanor necessary for that level of 
responsibility--not the sort of employees you would expect for jobs 
demanding creative problem solving and excellent communication skills.
    Now, I want to be clear here--I do not think their lack of English 
skills made them bad people. In fact, I feel no ill-will towards any of 
them. Each just wanted to earn a living and build a life for himself 
and his family in America--something I understand completely.
    Nevertheless the ability to communicate is an essential part of the 
work I did--and my replacements could not communicate. This does not 
disparage them as individuals--after all, my Mandarin is lousy--but it 
does call into question the decision to replace me with them. When I 
hear companies complain that they can't find ``qualified'' Americans to 
fill high-tech jobs, I think of my replacements and wonder exactly what 
qualifications they are looking for. Mr. John Miano, who is also 
testifying here today, may have an answer to that question.
    There is another, more troubling aspect to my experience at Com Ed. 
Two of the three individuals who replaced me were from China. I do not 
care about their ethnicity. But I do think that it is noteworthy that 
two of these men were foreign nationals from a country that our 
military views as a threat.
    This is important because, as a part of my job, I had access to all 
of the data communication switches that control the electrical grid for 
the entire Chicago metropolitan area. This access gives one the ability 
to shut down the entire telecomm/data comm. operations for the power 
company, and possibly the power grid itself. I have to wonder about the 
wisdom of replacing American citizens with foreign nations in highly 
sensitive positions like this. It is very likely that my replacements 
returned to China after six years, taking with them detailed knowledge 
about the inner workings of our electrical grid system.
    Why does Congress think this is a good idea?
    Between the summer of 2002 and January 2006, I had only worked for 
a total of about 6.5 months. I fully depleted my savings, and was 
nearly homeless on two or three occasions. On Thanksgiving 2004, I had 
an apple, baked beans and water for dinner. Since I could no longer 
afford my Cobra premiums, I am very fortunate I had no medical 
emergencies to contend with. Otherwise, I truly would have ended up 
being indigent.
    I am a highly-qualified network administrator with decades of 
professional experience and skills that are as current as anyone in the 
country. Yet for nearly three years, I was unemployable. During this 
period, Congress allowed companies to hire over 300,000 foreign workers 
on H-1B visas because companies claimed they could not find qualified 
Americans.
    I am here before you today to tell you that this claim is not true.
    There are thousands of unemployed Americans with the skills, drive 
and creativity to needed to thrive in the current marketplace. I know, 
because I was one. Yet too many of us cannot find jobs because 
companies are turning to H-1B workers as a first choice, before even 
advertising open positions to American workers. The H-1B program allows 
companies to hire 85,000 cheap, disposable workers each year before 
even looking for Americans.
    Companies can do this because current law does not require most H-
1B employers to prove they can't find an American before using an H-1B. 
In fact, the law doesn't even require companies to look. Without a 
labor market test, companies can, and do, use the program to bypass 
local labor markets entirely and replace qualified Americans with less 
qualified foreign workers.
    H-1B workers are allowed to stay in the United States for up to 6 
years--but only if their employers permit them. Since the visas 
themselves are owned by the sponsoring companies, H-1B workers are 
often treated as indentured servant, dependent upon their employers' 
good graces to stay in our country.
    This is not just bad policy, it is also wrong. It is wrong for the 
Untied States to encourage talented people to come to the U.S. and then 
deny them access to the freedoms the rest of us enjoy. And it is wrong 
to force American workers to compete against such a program. The H-1B 
program tilts the playing field against workers, both American and 
foreign, in favor of companies.
    As the program functions now, companies have strong incentives to 
favor H-1B workers over American workers. They can and they do give 
hiring preference to non-Americans, and even replace qualified American 
workers with H-1B workers. I know because it happened to me twice.
    I urge Congress to take a hard look at how the H-1B program 
actually functions. I urge you to look at the types of jobs that are 
actually being filled with the visas. I urge you to look at the wage 
levels the Department of Labor routinely approves for H-1B positions. 
And I urge you to listen to workers like myself who have suffered 
economically as a result of H-1Bs.
    If you do, you will learn that the visa program is far different 
than the one described by its supporters. The real H-1B program has 
more to do with providing companies with cheap labor, and little to do 
with making America more competitive.
    I would like to close by pointing out that the signers of the 
Declaration of Independence said that they would mutually pledge to 
each other, their lives, their fortunes, and their sacred honor.
    The Citizens of these United States are asking that the political 
and business leadership in this great country live up to that pledge, 
and not allow the lives and the fortunes of American Citizens to be 
compromised by these worker visa programs.
    Thank you for giving me an opportunity to be heard today and to 
share my story with you. I hope it will help you better understand the 
real H-1B program.

    Mr. King. Thank you for your testimony, Mr. Huber.
    And now recognize Dr. Baker for 5 minutes.

     TESTIMONY OF DELBERT BAKER, PRESIDENT, OAKWOOD COLLEGE

    Mr. Baker. Thank you.
    It is my privilege this morning to make some remarks 
concerning this very important topic. I was reflecting that 
last evening, I stayed at the Hilton, and our Vice President 
was there. And he--I saw his remarks on Fox News, and he spoke 
about a very humorous situation about some of the sensitive 
issues we're dealing with in Government.
    I thought it was an interesting approach because even 
though this subject is fraught with so many heavy overtures, as 
was brought out earlier, there is an aspect to it that I think 
that we must look at in terms of dealing with young people and 
dealing with students and dealing with those who are 
disadvantaged. And that is the aspect of how can we get more 
people in the pipeline? The Congresswoman spoke about this. I 
want to reiterate this point.
    I am president of a historically Black college in 
Huntsville, Alabama. We're about 10 miles from Redstone Arsenal 
and Marshall Space Flight Center-NASA. We have a variety of 
collaborations with these institutions, these organizations.
    And I have noted that the word ``globalization'' and the 
whole issue of diversity is often misunderstood, and people 
have the wrong perception in many circles. It's not a four-
letter word. It's a 13-letter word, if one counts the letters 
in it. And in fact, you will find that it can work to our 
advantage in so many different ways.
    I'm not speaking specifically to the issue of H-1B, being 
for it or against it. What I'm doing is bringing another 
component in, saying that there needs to be a complementary 
program that goes along with this particular program that is in 
operation.
    And that is the program is one that deliberately does a 
number of factors. Number one, without question, society needs 
to have understanding of not to fear the H-1B. Many people 
believe that all of our jobs and our well-being is threatened 
by this program.
    There needs to be a very clear, deliberate plan to educate 
the public through a variety of ways that this can help us when 
there is a shortage of jobs. At the same time, there must be 
controls put in place, as has been brought out earlier.
    But beside that, there's also the aspect of not simply 
awareness, but there needs to be some training of our faculty, 
our staffs, business persons, community persons on how to 
facilitate the process of getting the underrepresented, those 
who are disadvantaged into the pipeline so we, in fact, can 
have people, Americans to fill these positions that right now, 
in many cases, we're having to go outside for.
    So there is the awareness, the training. There's also the 
recruiting. We have a number of--a variety of programs in 
effect right now with the National Science Foundation, with the 
Department of Defense, NASA, UNCF, SAIC. A variety of 
corporations and organizations have programs that are 
attracting students. They're not enough.
    As Mr. Anderson brought out earlier, we have so many of our 
students who are not choosing the science, technology, math, 
engineering area, and we need to redirect this workforce--these 
people toward the workforce needs in that area. So we've got to 
recruit creative programs that offer scholarships, that offer 
incentives for students to be a part of this would be a great 
asset I know from the perspective of an educator.
    And then there is the aspect of accountability. Any program 
that's started must have clear factors that make people 
accountable. And of course, that would have to do that as well.
    And finally, I would say that somehow in the message we 
have, it's got to be communicated that with the H-1B and the 
other programs, that we're not competing against foreigners or 
immigrants. At my school, we have a variety of our faculty and 
staff are from other countries, and our student body, we have 
more than 40 countries represented on our campus. And so, we 
celebrate the diversity. We celebrate the globalization there.
    But yet, at the same time, we have to understand the needs 
of people in our own home country and how we have to develop 
workers to be ready to fill these positions. So there's got to 
be this message of collaboration and cooperation that's sent 
out as well.
    In conclusion, I believe that this program, these elements 
I have just described--this Committee supporting it, this 
Committee backing something like this, putting the word out--
that we need to do more in terms of preparing our young people, 
directing them to these important areas.
    I end by simply sharing a story I heard some time ago. It 
was about a man who lived in Nigeria, West Africa. His name was 
Modupe. He lived on a high mountain, and in the valley below 
Modupe, there was a village of people who he loved very deeply. 
He once had been a part of them, but he moved by himself after 
his wife had died, and he lived there.
    Through this valley, they had a river flowing. And this 
river would flow there, and the people supported themselves by 
this river. They farmed from it. They washed their clothes in 
it. They drank from it.
    One day, Modupe, when he was on this mountain, he looked 
down, and he saw that the dam that was holding, controlling 
this river was about to burst. It had been a heavy rain. And he 
realized that I've got to do something to help these people, 
but he didn't know how. He didn't have time to communicate with 
them.
    Then an idea came to him, and he rushed quickly, and he 
went and he set his house on fire. And when Modupe set his 
house on fire, the people in the village, they looked up there. 
And they saw him, and they said, ``There our friend is. We must 
help our friend.''
    And they set the alarm, and all of the women, boys and 
girls, and men rushed to the top of the mountain to help their 
friend Modupe, whose house was burning. When they got there, 
they realized what had happened. They looked down. They saw the 
damn had burst, and the whole village was destroyed. And they 
began to cry, and they felt so bad about it.
    And then they realized that something marvelous had 
happened. Modupe said to them, ``Don't worry. Because what has 
happened is by helping someone else, you have, in fact, saved 
your friend.''
    I believe that if we can direct workers and move people in 
this area, we will, in fact, strengthen, help, and even help to 
save our country and its workforce.
    Thank you very much.
    [The prepared statement of Mr. Baker follows:]

                 Prepared Statement of Delbert W. Baker

    Good Morning, my name is Delbert W. Baker. Thank you to 
Congresswoman Sheila Jackson Lee for the opportunity to speak to this 
committee.
       oakwood college, a 110-year-old historically black college
    I am the President of Oakwood College, an Historically Black 
liberal arts College, located approximately ten miles from NASA-
Marshall Space Flight Center and the Redstone Arsenal in Huntsville, 
Alabama. Established in 1896, Oakwood College has the distinction of 
being one of the top ten institutions in the country that sends 
minority students to graduate from medical school. Enrolling 
approximately 1,800 students, Oakwood College is one of the thirty-nine 
colleges in The College Fund/UNCF and one of the 120 member colleges of 
NAFEO--the National Association for Equal Opportunity in Higher 
Education.
    Oakwood College has a history of success with a student population 
that matriculates and persists to graduation. The College has been able 
to accomplish this due to a variety of factors, one of which has been 
the support that it has received from programs that are designed to 
increase student participation in fields that have minority under-
representation. These programs have been supported by organizations 
like CSEMS, the Computer Science, Engineering and Mathematics 
Scholarships programs sponsored through the National Science Foundation 
(NSF) and Department of Labor (DOL).

                   COMPLIMENTARY H-1B PROGRAM NEEDED

    Today I am appearing to give testimony from a unique perspective. 
My objective is to make comments about the H-1B program, and how 
support of H-1B should not obviate efforts to adequately prepare U.S. 
students and particularly under-represented minorities, women, persons 
who are physically challenged and those who are economically and 
socially disadvantaged to successfully take their place in the American 
workforce. More specifically, the intent of my comments is to reason 
that because of the reality of H-1B program, government and businesses 
should redouble efforts to assist those under-represented U.S. citizens 
who are seeking to, or potentially can, rise to fill positions 
currently targeted by the H-1B program. This objective can best be 
facilitated by establishing a complementary empowering program.
    Research supports the fact that despite gains made in past years, 
under-represented Americans, referred to earlier, remain seriously 
disadvantaged in their pursuit of careers in the areas of science, 
math, engineering, and technology. These groups still remain 
conspicuously absent in businesses, and corporate settings where 
science, engineering, and mathematical skills are required. With vision 
and the proper support, this reality can be reversed.

                   THE OBJECTIVES OF THE H-1B PROGRAM

    I am an educator. My role is to prepare students for the workplace, 
to prepare an educated workforce to meet the demands of a 
technologically complex and knowledge-based economy. However, I am also 
acutely aware of the immediate need that the U.S. has for highly 
trained, specialized workers that the H-1B Visa program was established 
to meet. The objectives of the program have been widely articulated: 
the need to supply educated, specialized guest workers, while 
protecting American jobs; the need to protect the rights of guest 
workers, while utilizing them on a short-term and limited basis; the 
need to get necessary jobs done, while not displacing or adversely 
affecting the wages or working conditions of U.S. workers.

              SAFEGUARDING PRINCIPLES FOR THE H-1B PROGRAM

    There is an equal rationale for prevailing principles to govern and 
safeguard the U.S. approach to the H-1B program. These principles 
encompass, but are not limited to:
    1) A deliberate communication to the American worker that H-1B 
legislation does not lessen concern for the American worker. The 
government should avoid the perception that all government and industry 
want to do is fill jobs and produce goods and services in order to keep 
a competitive economic edge. H-1B legislation and enactments must 
communicate to all Americans that America will diligently invest in the 
development, maintenance, and enhancement of all sectors of the 
American workforce.
    2) Protections for H-1B workers that ensure their dignity and civil 
rights will be preserved. These protections must certainly include 
measures to prevent exploitation, hiring H-1B workers at prevailing 
wage standards, whistle-blower protection for those who expose illegal 
or immoral practices, and measures to detect and avoid visa fraud.
    3) A unifying operating principle that views H-1B workers and 
permanent American workers as partners and not competitive enemies.

                A JANUSIAN APPROACH TO THE H-1B DILEMMA

    With that said, I move to the major reason for my testimony. The 
perspective that I bring is Janusian--a term that has become popular in 
educational circles. In Roman mythology, Janus was the god of gates, 
doors, beginnings, and endings. He was depicted with two faces looking 
in opposite directions. Thus, Janusian thinking says one can 
simultaneously keep in mind that which may seem like opposing 
perspectives. We are Janusian in our thinking when we can, function in 
the context of and use paradoxical conditions to solve vexing problems 
and construct important paradigms and innovative solutions.
    The H-1B dilemma requires Janusian thinking. While there is a need 
for a viable, reasoned H-1B program, our government leaders must 
equally ensure that everything possible is being done to adequately 
prepare American citizens to be strategic and productive workers for 
the future. These balancing concerns must be assiduously pursued by 
legislators, educators, government and public servants, and the 
American public in order to ensure a prepared U.S. workforce for the 
future, so that American labor will not continue to be dependent on 
essential professionals by necessity or lack of preparation.
    One of the best ways to ensure that we are prepared for future 
labor demands and complexities of a global economy is through proper 
attention to education. I support educational initiatives for all 
students, but we must assiduously promote and protect programs that 
prepare minority students in technology, science, math, and 
engineering.
    Fortunately, there are models and precedence for this approach. As 
I stated in my introduction, the programs that have been implemented at 
Oakwood College have helped us prepare minority students. Programs 
sponsored by the Government can and do work.

                 WORKING MODELS OF EMPOWERMENT PROGRAMS

    This is borne out by programs, grants, and contracts with federal 
agencies such as: the Department of Defense (Enhancing Math and Science 
Education; Expanding Research Opportunities for Undergraduate 
Students), the National Institutes of Health (RISE-I-CARE = Research 
Initiative for Scientific Enhancement-Improving Curriculum by Academic 
and Research); National Science Foundation (ACER = Active Chemical 
Education through Research); MGE = Minority Graduate Education Program 
and Title III Funds, and in collaboration with NASA (MISE = Minorities 
in Science and Engineering; PAIR = Partnership Award for the 
Integration of Research); UNCF Special Programs (SEEDS = Strategies for 
Ecology Development and Sustainability). More than 100 students in the 
STEM (science, technology, engineering, and math) programs have 
benefited from these entities; and our graduates in the natural 
sciences are pursuing and obtaining non-medical M.S. and Ph.D. degrees. 
These programs are complimented by private industries like SAIC (Cost 
Plus Award Fee Subcontract to NASA).
    These programs work. Many of the successes and positive outcomes 
can be directly linked to Congressional programs and presidential 
actions, like the one taken by President Bush in 2002 when he signed 
the Presidents' Executive Order 13256 . . . ``regarding the needs of 
Historically Black Colleges and Universities in the areas of 
infrastructure, academic programs, and faculty and institutional 
development . . . , strengthening fiscal stability and financial 
management, and improving institutional infrastructure, including the 
use of technology, to ensure the long-term viability and enhancement of 
these institutions.''

                    POTENTIAL OF THE ATRAC APPROACH

    Here is a specific recommendation for your consideration. This 
recommendation provides a foundation, a platform for broader, more 
creative and comprehensive initiatives.
    The recommendation is that the government earmark funds to 
establish a pilot program to compliment the H-1B program. This 
foundational program would include but not be limited to the following 
five components: AWARENESS, TRAINING, RECRUITMENT, ACCOUNTABILITY, 
COOPERATION (ATRAC):
    1) AWARENESS: That a plan be developed and implemented to educate 
the general public, our K-12 system, and our institutions of higher 
learning on the need to aggressively prepare students to assume careers 
in science, math, engineering and technology. These programs must be 
laser-focused and insistent. Special efforts must be well-placed to 
encourage women, under- represented ethnic minorities, persons who are 
physically challenged and Americans who are socially and economically 
disadvantaged.

          We are missing the valuable contributions that these 
        groups can make to our national economy and landscape by 
        allowing their numbers to continue to be miniscule in 
        professional graduate education, research, and in business 
        management.

    I have no doubt that such a public awareness campaign for education 
can be effective if it is undertaken with persistence. Through public 
relations efforts in America we have begun to see changes in the way 
our citizens eat, exercise, and watch their weight. We have initiated 
the Amber alert system that mobilizes communities when a child is lost 
or abducted. We have the Homeland Security Advisory System, color-coded 
to inform society of the potential threat conditions. The public has 
become aware of a vast, and heretofore unrecognized, need for ethics in 
business and politics through a public, informal education received at 
the hand of legal interventions and court trials. Equally, we must 
develop strategies that educate the public about the benefits and 
necessity of preparing students in vital areas where current 
preparation is lacking.
    2) TRAINING: That oversight organizations begin and/or continue to 
provide or increase funding for programs that train educators and 
institutions which actively prepare students for targeted professions. 
Many HBCUs and other minority-serving institutions are struggling to 
attract, recruit, and retain students with uncultivated skill and 
talent. Professors, administrators, staff, and institutional 
researchers must have on-going training in best practices, benchmarking 
strategies and future trends if they are to be expected to meet current 
issues and address new challenges.
    Programs like the ones that are currently in place in the National 
Science Foundation and Department of Labor must be expanded and include 
``train the trainer'' components. These programs must be accessible to 
all institutions, particularly minority-serving institutions. While 
programs to train faculty in colleges and universities are vital, we 
must not fail to adopt the forward thinking that includes training for 
K-12 teachers so that the seeds for career possibilities in technical 
areas can be planted in students' minds as early as possible.
    3) RECRUIT: Well constructed, intentional programs should be 
developed in all appropriate agencies to attract and recruit under-
represented students. As referenced above, the Presidents' Executive 
Order as implemented through the White House's initiative for 
Historically Black Colleges and Universities is a good model on how 
this might be implemented. Conventional wisdom most certainly includes 
scholarship and grant opportunities to promising students. Scholarship 
programs provide a compelling incentive to students and their value 
cannot be minimized.
    However, the challenge, in our education partnership, is to devise 
new ways to motivate students in critical areas. The programs of the 
last 30 years--Youth Motivation Task Force (YMTF), Black Executive 
Exchange Program (BEEP), INROADS (that emphasizes Selection, Education 
and Training, and Performance)--have recently been complimented by the 
US Dream Academy and MiFuturo to be more representative of the full 
diversity of the under-represented segments of our society in a highly 
technological global village. The goals of the above initiatives and 
what I am advocating in relation to H-1Bcan share in common some of the 
same content objectives:

        1.  Practical experiences in self-esteem and character 
        building.

        2.  Integrating culturally diverse mentors and role models into 
        the education equation.

        3.  Peer tutoring.

        4.  Increased technology literacy.

        5.  Career coaching and access to post undergraduate providers 
        offering internships, entry level positions, and graduate 
        education.

        6.  Community Assistance and Service Learning.

        7.  Leadership.

    Of course, the best educational culture provides learning that can 
be applied and in real time. Hence, modern techniques, ranging from 
interactive web portals to mentors to onsite learning centers will make 
it possible to fill the gap, develop competency, and respond to student 
needs more selectively.
    I advocate that we evolve learning communities which collaborate in 
the delivery of relevant, innovative cutting-edge curricula and 
community partnership. We must deploy intrusive strategy that seeks to 
customize educational offering to meet the unique needs of a diverse 
student population, high tech society, and future workforce.
    4) ACCOUNTABILITY: The programs and plans, to be effective, must be 
specific, measurable, and have accountability imbedded. With 
intentional oversight and with the appropriate bodies to insure that 
they are accomplishing their intended objectives, this complementing 
program could also serve to deflect criticism of the H-1B program. More 
importantly it would intentionally be investing in the future potential 
of our citizens, be a deterrent to crime and ``drop-outism,'' and 
develop workers for the targeted areas.
    5) COOPERATION AND COLLABORATION: The final point of this proposed 
H-1B program is a values-based PR component. The H-1B program will be 
best served if it operates in a context of cooperation and 
collaboration. The current H-1B program need not be surrounded with 
suspicion and whispers of conspiracy. Establishing a ATRAC pilot 
program would help to allay suspicion by assisting U.S. citizens who 
will be impacted by the H-1B program. It would allow the H-1B platform 
to move from a reactive position to a proactive one.

                     CONCLUSION: A WIN-WIN OUTCOME

    All aspects of the ATRAC program would send the message that 
historically disadvantaged and under-represented groups are in 
cooperation and collaboration rather than in competition with the 
benefactors of the H-1B program. Everyone benefits. It provides a firm 
foundation for citizens and immigrants to work together for a stronger 
America and a stronger global community.
    In conclusion, this ATRAC approach could facilitate a win-win 
situation. I appeal to this Committee to seriously consider endorsing 
this type of programmatic approach that will ensure the future of 
under-represented American workers while simultaneously utilizing the 
H-1B Program to meet current needs.
    Thank you for the opportunity to testify and for your consideration 
of this approach. I trust these ideals will be useable.

    Mr. King. Thank you, Dr. Baker.
    And I will recognize myself for 5 minutes and start with 
you on that--on that subject.
    I just look back in about 1959, when Sputnik went up and 
America went into a panic. And most of us students that were 
sitting in a classroom at that time--and I was in about sixth 
grade--whether we knew it or not, we were going down the path 
of science and math and physics and chemistry.
    And today, it'd be computer technology and some of the 
other IT if this happened. We went into a national mobilization 
because we realized that we were maybe behind in the science 
and technology.
    And you talked about educating foreign students as well as 
American students and trying to find a balance between that.
    Mr. Baker. That's correct.
    Mr. King. That's the most difficult question that we have 
to address here. In fact, it is the central question for this 
hearing and for this Committee and for the Congress as a whole.
    But I--I'd pose this question to you, and that is, you're 
educating foreign students as well.
    Mr. Baker. That's correct.
    Mr. King. Some of them will stay in this country. Some of 
them will go back to their home country. What happens to the 
second generation of those engineers and those scientists and 
those technology majors when they go back to their home 
country? Do they become educators and professors there?
    Mr. Baker. Well, that's an excellent question, Mr. 
Chairman.
    We actually encourage the foreign students who come to 
Oakwood to, in fact, return to their home country. We're 
concerned about the ``brain drain'' and the fact that they're 
leaving, in many cases, the Caribbean, Africa, South America. 
So we encourage them to go back.
    We have very little control over that. America is very 
appealing. Too many of them, often they don't want to go back. 
But at least this is something we stress.
    And I put in the record this Janusian concept, the idea 
that the god Janus looked two directions at one time. This is a 
real dilemma, and it's something that we all struggle with. 
That they are appealed--they see so much in the U.S. that they 
want to come here for, but yet, at the same time, we encourage 
them to go back and help. And that, ultimately, it becomes a 
personal decision.
    Mr. King. But as this number of students, foreign students 
that we're educating on H-1B visas and as those numbers 
increase and those percentages go up from half to two-thirds 
and maybe higher than that, as Mr. Anderson testified as well, 
and if they go back to their home country and they become 
educators, don't they establish universities there, and they 
educate that there?
    The next generation of those students won't have a need to 
come to the United States to pick up that education. It will be 
there in their home country. Now that's a good thing for that 
country because it projects American values and technology and 
lifts their economy.
    But what do we do if we're left here, and we're not 
educating our American workers? I guess I'd submit this, that 
using your analogy and your story, we may be building our 
village in a flood plain here by educating foreign workers, 
sending them back to their home country, and not educating 
American citizens that are here in their place instead.
    And that's my concern. Would you comment on that?
    Mr. Baker. Well, I think that's a very good point. I think 
that there's no question about it. We've got to educate our own 
people as well. I don't think we should be exclusive.
    And like, when someone knew I was coming here, they knew 
that I was coming to this hearing, and one of our faculty 
approached me and said, you know, ``Dr. Baker, we're really 
concerned that''--they asked me to make a simple message. I 
didn't put this in the record. But they said, ``Would you help 
them to make it so that it's not so bureaucratic?''
    It's so difficult. They say we, in fact, can help to train 
workers, train your people, Americans, as well as people who go 
back to their country. So there is a need for us to stay here 
as well.
    I do believe, though, that there is a need, Mr. Chairman, 
for them to go back and to help their own people, to build and 
to establish and move on from there.
    Mr. King. At the time, find a balance.
    Mr. Anderson, how would you answer that question? You've 
asked for 195,000 H-1B visas. Is that--is that number something 
that's been empirically arrived at by a study across America 
here, or is it a political number? And would you be willing to 
support a higher number or a lower number in subsequent years?
    Mr. Anderson. I mean, that's a good question. I mean, 
basically, as Congressman Smith knows--he's been very involved 
in this issue--I mean, a lot of these numbers that have been 
picked have been basically political compromise numbers.
    The reason I mention 195,000 is that's something that was 
shown to be acceptable not very long ago, and it basically 
worked for its purpose because it was able to pass the 
Congress, but also there were plenty--there were enough visas 
there that you didn't see these long hiring delays. And so, you 
didn't have the situation where, literally--as I point out in 
the testimony--people cannot be hired unless they're on--hired 
on an H-1B visa.
    And so, you have the situation where if someone is 
graduating from a college campus, except in some circumstances, 
they basically are not going to be hired--be able to be hired--
in the United States.
    Mr. King. But Mr. Anderson, how would you answer the 
question of if the United States has moved our numbers of our--
in our science and technology educational fields up to where, 
as your testimony, 50 percent to two-thirds of these students 
are foreign students, and if a significant percentage of those 
leave--we were able to educate American students here to meet 
the technology demands in 1959. And we went to the Moon 10 
years later.
    Now, what's the reason why we can't educate American 
students to fill these roles now? And this supply and demand 
question that's out there that Mr. Miano testified to and also 
Mr. Huber testified to, a $30,000 reduction in those wages, 
wouldn't you hire an engineer for a third less if you can?
    And those kind of questions, how does supply and demand 
work into this equation if we're going to continue to bring in 
cheap labor? And I'll let you answer the question, and then 
we're out of time.
    Mr. Anderson. Sure. Well, I think that the basic issue is 
we really don't have a fixed number of jobs. I mean, I think 
that one of the reasons why we aren't finding enough Americans 
in these fields is that you've seen an expanding economy, 
particularly in these fields.
    I mean, Marc Andreessen, the founder of Netscape, talks 
about how in 1993, he could tell you that there were about 200 
people working on jobs related to the Internet. And about 10 
years later, there are about 2 million. So some of this concern 
about having enough Americans to fill these jobs is, in some 
cases, a story of that we've had an expanding economy and 
expanding in these fields.
    Mr. King. Thank you, Mr. Anderson.
    And I yield back the balance of my time and recognize Mr. 
Berman for 5 minutes.
    Mr. Berman. It seems like there's sort of three separate 
strains here. One is, Mr. Anderson, a lot of impressive leaders 
in different kinds of technology industries. Others are saying 
we are getting strangled by the cap on H-1B. We are being 
forced to outsource and look elsewhere and lose in the 
competition for creative and innovative people because of the 
cap on H-1B.
    Dr. Baker is saying why don't we fix part of this problem 
by incentivizing more people to go into the sciences and math 
and the computer sciences so we can provide these wonderful 
opportunities for people who are in this country, growing in 
this country, being educated in this country? There are--there 
is opportunities out there, and we don't do enough to drive, 
through policies at the local and Federal level, people into 
that area.
    And then you have, in a sense, Mr. Miano and Mr. Huber, 
from personal experience, saying there are people out there. 
These people you're hearing from, Stuart Anderson, the business 
leaders clamoring for the increase in the cap, they are really 
imitating what has gone on in the context of employers of 
relatively low-skilled workers.
    They're looking for ways to cut their costs and maximize 
their profits by treating this as a--as a wage-cutting, 
benefit-limiting method of getting the same kind of help they 
could otherwise get through the normal marketplace by sort of 
creating this force channel of imported labor, who will allow 
them to do what they want to do cheaper and thereby sort of 
alter the market in that context.
    I'd like to hear Stuart Anderson respond sort of to--to 
that point of Mr. Miano's and Mr. Huber's testimony.
    Mr. Anderson. Sure. Well, I mean, as was pointed out in the 
opening statements that, you know, the law requires that an 
employer has to pay the higher of the prevailing wage or the 
actual wage paid to other individuals.
    There was a compromise struck in 1998----
    Mr. Berman. But Mr. Miano says that ain't happening.
    Mr. Anderson. Right. Well, let me--I can talk about it, his 
study. I mean, I think there's basically two problems with Mr. 
Miano's study, and I'm sure he did the study in good faith.
    But first of all, he looked at prevailing wage data, which 
was publicly available at the Department of Labor, but that's 
not necessarily what companies pay. Companies pay the higher of 
that or the actual wage paid to other people with the same 
qualifications and education at their workplace. And that 
information is filed with the immigration service.
    And we looked at--we asked a law firm to do--just to test 
this proposition and to do a sample of 100 cases and found that 
it was about 22 percent higher.
    Mr. Berman. So you mean the Department of Labor statistics 
don't actually reflect----
    Mr. Anderson. No, they don't reflect what someone pays. 
That's the bare minimum. You have to pay the higher of the 
prevailing wage or the actual wage.
    And then what Mr. Miano does is compare computer 
programmers----
    Mr. Berman. Wait, wait, wait, wait. The prevailing wage or 
actual wage?
    Mr. Anderson. Or the actual wage that you paid other people 
like at your firm who have a similar education. For example, if 
you have a lawyer with 10 years experience that you're hiring, 
you have to--you have to also, you know, pay them the same as 
you're paying a lawyer that has 10 years at your firm.
    And so, that's the second problem on the study is he 
compares the computer programmers that are newly hired to the 
average wage of all computer programmers in the United States, 
and the statistic actually includes bonuses, for example. And 
you know, to compare it to all new hires, it would be no more 
fair than, say, comparing--I mean, I look at the congressional 
staff. A lot of friendly faces. Been here a long time.
    If you were to compare newly hired congressional staff to 
the average wage of all congressional legislative staff in the 
Congress, you would basically come to the conclusion that 
Members of Congress are somehow exploiting all their workers 
because the salary for newly hired people on legislative staff 
is much less than the average wage for all congressional staff.
    Now I know none of the workers here feel they are 
exploited, but--but the point is, you know, it's no more fair 
to blame Members of Congress that they don't pay as much for 
every single new hire as they pay--you know, as it would be to 
blame all technology companies that every new hire doesn't get 
paid.
    Again, the main point is, is that you cannot hire anyone 
today directly on a green card. You know, it takes--it's 5 
years.
    Mr. Berman. Although let me--can I just interject one 
thought here? In a weird way, this whole fight about H-1B is a 
funny kind of fight. Isn't the real answer to fix the 
underlying regular immigration system, the distribution of 
visas and all of that, rather than continue to rely on these 
temporary programs for essentially permanent positions?
    Mr. Anderson. I mean, I think you would still--even if you 
completely fixed the green card thing, you'd still want to have 
some number of H-1Bs, you know, for people who come in for 
projects and people who may not be a good fit for staying here.
    But I completely agree and I know that there's others who 
agree that it would be a good idea if you had enough 
employment-based green cards and a process where someone could 
get hired in, say, 30 to 60 days. They get hired on a green 
card. It would be an incredible competitive advantage for U.S. 
companies that they could hire people directly on a green card.
    But the reality is that, you know, no one can start--you 
know, it's a 5-year wait, and no one can, you know, get hired 
today. And they say, you know, ``Come back on March 30, 2011, 
and Mary will show you around the office.'' It just doesn't 
work that way. So, in reality, companies have to face with what 
they're faced with.
    Mr. King. The gentleman's time is expired.
    I recognize the gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    It seems to me that it's pretty obvious that all of our 
witnesses today either oppose the H-1B program as it's 
currently configured or support a cap, in the case of Mr. 
Anderson.
    What I'd like to get at is that it seems to me that no one 
supports unlimited H-1Bs. There is more than a tacit 
recognition, there's actually an overt recognition that we, at 
some point, would do a disservice to our--to American students 
and others whom we would try to encourage to become experts and 
skilled and technically proficient workers.
    And therefore, it seems to me that the goal, if we have an 
H-1B program--and obviously, at some level we do as well--
whether it's 65,000 or 195,000--we would want to have a program 
that did not adversely impact the future of American workers.
    And my question goes--and this--my questions goes or is 
really based upon a conversation I had in my office recently 
with someone from a high-tech company who is a very, very 
strong advocate of H-1B workers. And this individual was 
willing to say that because I feel both that we need H-1B 
workers currently, but because in the future I hope we will 
have more homegrown technically skilled workers, that if we had 
a program, I'd be willing to accept the premise that we ought 
to have a temporary program in hopes that we would have our 
homegrown talent and perhaps even have a sliding cap that would 
decrease over time, again, so that we would not shut out 
homegrown American workers.
    If you do have a permanent program with a relatively high 
level, you're basically never providing the incentive for 
American students to become those highly skilled workers.
    And so, maybe, Mr. Anderson, I'll start with you. Would you 
support that kind of a concept? And I realize by stipulating 
that we have an H-1B program, that might not be something 
that's supported by some of the other witnesses.
    But if we did have an H-1B program and in order to provide 
an incentive, increase the demand for homegrown talent, 
wouldn't it make sense to have an H-1B program that is 
temporary for a certain number of years, and that perhaps went 
down after a certain number of years so that we wouldn't 
eliminate the incentive for American workers?
    Mr. Anderson. Sure. I think--you know, and something that 
you've tried to do is try to achieve the balance, and I think 
we had the increased regulation that took place in the '98 bill 
and the increased--the money for scholarships that was pointed 
out in the testimony about, 40,000 scholarships have been 
created.
    I mean, the only problem with trying to pick a number and 
then have it go down over the years is that's somewhat what 
we've seen in the most recent years, and the problem is that 
it's turned out because of demand and the economy, it's turned 
out to not--you know, to not be enough.
    I do think there is adequate incentive for people to go 
into some of these exciting fields now. I mean, I do think 
there are a lot of Americans going into these fields. I just 
think the demand, because of the----
    Mr. Smith. But if you had, say, a high permanent level, 
then you--it seems to me--are building in sort of a built-in 
subsidy or a built-in disincentive if you have that for the 
foreseeable future, then you're alleviating the demand to that 
extent. And I don't know under a free market system whether 
that is really providing an incentive for American students to 
take up the sciences or the computer sciences and so forth.
    So I do think that there's a case to be made that if you 
have an H-1B program, it maybe should come down over a number 
of years or it would not be permanent so that we continue to 
provide the economic incentive for students to focus on those 
particular types of professions and also to let the wages 
increase so that we do attract students in those particular 
categories.
    Did you want to respond, Dr. Baker?
    Mr. Baker. Yes. Yes. I do want to make it very clear that I 
don't oppose H-1B. And I even would go as far as to say that 
your sliding approach to the cap has much merit to it.
    I think the concern is the safeguards with it. Is it being 
abused, and how can it be safeguarded so it's not taken 
advantage of?
    Mr. Smith. Yes.
    Mr. Baker. So those two points are clear.
    The other point, though, you mention about homegrown. 
That's absolutely true. That's what we really need to do. This 
program should support our efforts to develop people to fill 
these positions.
    And that's why I brought up, the item perhaps was before 
you came in, and that is the issue of having a complementary 
program to help develop the people, especially the 
underrepresented, those who are disadvantaged, who badly need 
to be prepared for these positions.
    Mr. Smith. I did read that in your testimony.
    Mr. Chairman, let me just make a final point--our new 
Chairman, let me make a final point.
    Mr. Gohmert [presiding]. The Chair yields an additional 
minute. Without objection.
    Mr. Smith. Thank you.
    And that is that the attestations that we have in some of 
our immigration laws, including attestations that apply to H-1B 
dependent companies, and those two attestations are typically 
that you have to advertise for an American worker first and 
that you cannot fire an American worker and replace the 
American worker with a foreign worker. My concern about those 
is it's--they are both unenforced and perhaps unenforceable and 
do not work.
    So we will have to come up with better types of safeguards 
for American workers as we proceed to discuss either this type 
of immigration, the H-1B, or other forms of immigration visas 
as well.
    Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Smith.
    The Chair will yield to the gentleman from California.
    Mr. Berman. Mr. Chairman, can I just in a regular order ask 
unanimous consent to put into the record a letter to Chairman 
Hostettler and Ranking Member Sheila Jackson Lee from 
Microsoft, Jack Krumholtz, regarding this issue?
    As you might imagine, he thinks the 65,000 H-1B cap is--is 
arbitrarily low and hurtful to both his company and to the 
overall technology economy.
    Mr. Gohmert. Without objection, the letter will be entered 
as part of the record.
    [The letter from Mr. Krumholtz follows in the Appendix]
    Mr. Gohmert. The Chair recognizes the gentleman from 
Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. And I'd like 
to thank you and Chairman Hostettler for holding this hearing 
on this important subject.
    It's important to note that this hearing is about legal 
immigration, not illegal immigration. And I have concerns about 
many of our Nation's legal immigration laws.
    In fact, I have introduced legislation to eliminate the 
visa lottery program through which 50,000 aliens are chosen at 
random to come and live permanently in the United States based 
on pure luck. The visa lottery program threatens national 
security, results in the unfair administration of our Nation's 
immigration laws, and encourages a cottage industry for 
fraudulent opportunists.
    Traditionally, our laws dealing with immigration and 
foreign workers entering the U.S. have focused on ensuring that 
those who come into our country have existing connections with 
family members lawfully residing in the United States or with 
U.S. employers.
    These types of relationships help ensure that immigrants 
entering our country have a stake in continuing America's 
success and have needed skills to contribute to our Nation's 
economy. Programs such as the visa lottery program ignore these 
types of connections and, thus, present unnecessary risks to 
our Nation.
    On the other hand, the H-1B visas bring workers into our 
country who businesses believe will better our workforce and 
economy. In addition, these workers have a stake in America's 
success.
    I believe that U.S. businesses should have access to the 
best and brightest workers in the world. U.S. workers have 
consistently been the best and brightest, and we are working to 
ensure that U.S. policies continue to encourage top-notch 
graduate and post graduate degrees in math and science so that 
the U.S. continues to produce the most talented graduates in 
the world.
    However, highly skilled talent is not limited to the U.S. 
Many students from around the globe come to the U.S. to get 
advanced degrees in math, science, and other specialty 
occupations. Our Nation's businesses should be able to choose 
from the very best.
    While we should ensure that the most talented, high-skilled 
workers are available to U.S. businesses, it's equally 
important that we ensure that businesses do not abuse the 
process to artificially reduce wage rates or to displace 
talented American workers.
    Another issue that Congress must grapple with is the amount 
of H-1B visas we should allow. When contemplating the cap 
issue, we must consider the demand for these workers in the 
U.S., the effect on the U.S. high-skilled workforce, the 
competition from other countries to bring the most talented 
workers within their borders, and many other factors.
    If there is a demand for highly skilled workers that cannot 
be met by the U.S. workforce, I would be supportive of efforts 
to ensure that U.S. businesses have access to the most talented 
pool of workers from around the world.
    Earlier this week, the Senate Judiciary Committee voted to 
increase the H-1B visa cap from 65,000 to 115,000, beginning in 
2007. The provision would also raise the cap in any fiscal year 
when the limit is reached.
    This hearing today is both timely and appropriate. I would 
welcome my comments being reviewed and commented upon by any 
members of the panel, and I'll open it up for anybody who wants 
to respond.
    Mr. Miano. I'd like to respond.
    Mr. Goodlatte. Mr. Miano?
    Mr. Miano. I'd just like to--if the state of the H-1B 
program is such that employer, as in my local area, could 
summon all its IT workers to an offsite meeting, tell them 
you're fired, and be replaced by H-1B workers. That's the sort 
of thing that we're seeing in the industry. It happened in a 
number of companies just in my area with hundreds of people 
being involved.
    And we don't have even the basic--basic level of protection 
where an employer can't just openly fire Americans and bring in 
replacements through a third party. I mean, that's where we--
you know, we want to start at that high level first----
    Mr. Goodlatte. Anyone want to respond to that? Mr. 
Anderson?
    Mr. Anderson. Yes. It's just completely untrue. Basically, 
the law--the law on if someone has what's called, you know, an 
H-1B dependent company that it's going to replace Americans, 
basically, specifically prevents that. There's a whole--there's 
a whole body of--let me give you an example.
    This is--this is the reg that the Department of Labor sent 
up, just from the 1998 law, and these are the books that the 
various companies have to use just to try to comply with the 
law. It's a very highly regulated system.
    In addition, for companies that aren't H-1B dependent, 
there's a provision that if you--you cannot lay off an American 
and then--and then hire an H-1B worker that is--you know, that 
is underpaid. You get--I think it's about a $35,000 fine per 
violation, and you also end up getting debarred from----
    Mr. Goodlatte. Let me ask Mr. Miano, have you had any 
experience with workers being displaced, as you describe them, 
and going through this process?
    Mr. Miano. Absolutely. And under oath, I say I've seen it 
firsthand, personally.
    Mr. Goodlatte. Would you submit to the Committee the 
information so that we can have the benefit of that as we----
    Mr. Miano. It's in my written statement, sir.
    Mr. Goodlatte. Okay. Specific?
    Mr. Miano. Specific.
    Mr. Goodlatte. All right. Let me ask you this question to 
all of the members of the panel. Is there evidence of a high 
rate of unemployment amongst highly skilled American workers as 
a result of what Mr. Miano describes? Dr. Baker?
    Mr. Baker. I would say in the underrepresented areas and 
with minorities, I wouldn't say that they're unemployed, but 
they're not trained. And there's very little effort in so many 
circles to get them to a point where they can be qualified to 
fill these positions you're referring to.
    Mr. Anderson. I mean, the overall unemployment rate is 
pretty low, as you know, in the country, 4.8 percent. I believe 
the unemployment rate for professionals generally is about a 
little over 2 percent. It may vary from different occupations.
    But keep in mind, we haven't had--no one has been allowed 
to be hired on a new H-1B visa for most of the last 3 years, 
except for--the last 3 fiscal years, except for these open 
windows, when the Government has been accepting applications 
and some of the exemptions.
    So for large--I mean, you know, for large months at a time, 
no one has been able to be hired on a new H-1B, you know, a new 
person coming and working on----
    Mr. Goodlatte. Mr. Anderson, let me ask you conversely, if 
I might--I need to ask one more question.
    Mr. Gohmert. The Chair will yield an additional minute.
    Mr. Goodlatte. I thank you, Mr. Chairman.
    Is there evidence of significant out-migration of high-tech 
businesses in the country because of the inability to hire the 
type of workers that they need to sustain those businesses in 
the United States?
    Mr. Anderson. Well, I think you are seeing more--more 
resources placed outside the country, and I think you've seen a 
number of companies have--they've basically said that they, you 
know, would like to be able to hire more in the U.S.
    And if you don't give people a choice on some of the key 
people they identify that they want--I mean, I know a company 
that's doing network--network security, and they couldn't get 
the person in under the timeframe when the cap got hit. And so 
they hired the person in the UK, and he was heading a team. And 
so the other people who were going to work with him that would 
have worked with him in the U.S., instead are working with him 
in the UK.
    Mr. Goodlatte. Thank you very much.
    I apologize, Mr. Chairman.
    Mr. Gohmert. The Chair recognizes the gentlelady from 
California for 5 minutes. Ms. Waters?
    Ms. Waters. Thank you very much, Mr. Chairman.
    I guess I really don't need 5 minutes. I just wanted to get 
in here and hear what's being said about the need to increase 
or to have additional H-1B visas.
    I am not supportive of in any way expanding or increasing 
these visas. I am only about getting the unemployed in America 
hired. I am about filling jobs with people who are overlooked.
    I am about asking industries that are importing workers and 
going abroad to do it to just look to the neighboring State 
oftentimes or across the country. They can find workers. I have 
a lot of statistics about African-American workers that are 
twice as likely to be unemployed in the computer and technology 
industries that have been given to me.
    And so, I don't have a lot to add. I'm--I'm not going to 
support any increase for anybody anytime, any place, anywhere, 
anytime soon.
    Thank you very much.
    Mr. Gohmert. All right. The gentlelady yields back.
    Ms. Waters. I yield back the balance of my time.
    Mr. Gohmert. Thank you, Ms. Waters.
    Gentlemen, we certainly appreciate your testimony. I'd just 
like to echo the initial comments of Mr. Goodlatte. I think the 
Diversity Visa Lottery Program is something that has got to go. 
It's an abdication of Federal responsibility that we let people 
get a visa by drawing at a lottery.
    So I've appreciated Mr. Goodlatte's efforts in that regard, 
and hopefully, they will come to fruition so that we can get 
rid of that program, and your testimony here today will assist 
in taking a hard look at what we do with H-1B.
    At this time, anybody to my right have any additional 
questions?
    [No response.]
    Mr. Gohmert. Hearing none, at this time, the Chair wishes 
once again to thank all the participants today, and I remind 
the Members of the Committee that all Members have 5 
legislative days to make additions to the record.
    Hearing nothing further, at this time, we are adjourned.
    [Whereupon, at 10:09 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    I will start by saying that I support the H-1B program. Without it, 
American employers would not be able to hire enough highly educated 
professionals for the ``specialty occupations.'' A ``specialty 
occupation'' is employment requiring the theoretical and practical 
application of a body of highly specialized knowledge. This includes 
doctors, engineers, professors and researchers in a wide variety of 
fields, accountants, medical personnel, and computer scientists.
    Besides using the H-1B program to obtain foreign professionals who 
have skills and knowledge that are in short supply in this country, 
U.S. businesses use the program to alleviate temporary shortages of 
U.S. professionals in specific occupations and to acquire special 
expertise in overseas economic trends and issues. This helps U.S. 
businesses to compete in global markets.
    An American employer who wants to bring an H-1B employee to the 
United States must, among other requirements, attest that he will pay 
the H-1B employee the greater of the actual compensation paid to other 
employees in the same job, or the prevailing compensation for that 
occupation; that he will provide working conditions for the 
nonimmigrant that will not cause the working conditions of the other 
employees to adversely be affected; and that there is no applicable 
strike or lockout.
    The employer also must provide a copy of the attestation to the 
representative of the employee bargaining unit or, if there is no 
bargaining representative, must post the attestation in conspicuous 
locations at the work site. Additional attestation requirements for 
recruitment and layoff protections are imposed on firms that are ``H-1B 
dependent.'' A company is considered ``H-1B dependent'' if 15% or more 
of its employees are H-1B workers.
    The subject of this hearing is the cap for H-1B visas. The 
Immigration Act of 1990 set a numerical limit of 65,000 on the number 
of H-1B visas that can be issued annually. In FY2004, the 65,000 limit 
was reached in mid-February. On October 1, 2004, the United States 
Citizenship and Immigration Services (USCIS) Bureau announced that it 
had already reached the FY2005 cap. The FY2006 cap was reached in 
August 2005, which was even earlier.
    I know that the American companies can be more aggressive in 
recruiting American employees, particularly at the minority college 
campuses. I also think that more can be done to retrain American 
workers who are being phased out of the high-tech industry when new 
technology is developed. But these measures in themselves are not 
likely to eliminate the need for raising the H-1B cap.
    The cap is preventing U.S. businesses from meeting their speciality 
occupation needs, and their needs are likely to increase. The 
Department of Labor has estimated that between 2002 and 2012 there will 
be two million job openings in the U.S. in the fields of computer 
science, mathematics, engineering, and the physical sciences.
    I view an increase in the cap as a short-term solution to a long- 
term problem, which is to find a way to produce enough American workers 
for these occupations. A good first step towards a long- term solution 
would be to develop a coordinated strategy to expand the education 
pipeline for American students who are preparing for careers in 
speciality occupations.
    Foreign students represent half of the U.S. graduate school 
enrollments in engineering, math, and computer science. It is not 
surprising, therefore, that U.S. employers frequently turn to H-1B 
professionals when they recruit post-graduates from U.S. universities.
    I would like to double the number of American students who earn 
baccalaureate and advanced degrees in the fields of science, 
technology, engineering, and math through increased investment in 
America's math and science education programs.
    While we are working on a long-term solution, the availability of a 
sufficient number of H-1B visas is necessary to keep American companies 
competitive in the world market. If we fail to meet that need, American 
companies may lose out to foreign competition, which could have 
devastating consequences for the U.S. economy.

                              ----------                              

   Mr. Ralph Hellman, Senior Vice President, Information Technology 
                            Industry Council



                               __________
  Mr. Dan DeBoer, Information Technology Professional, Lisle, Illinois



                               __________
   Mr. John A. Bauman, President, The Organization for the Rights of 
                            American Workers



                               __________
  Mr. Robert W. Holleyman, III, President and CEO, Business Software 
                                Alliance



                               __________
    Mr. Darrell L. Rauthburn, Information Technology Professional, 
                             Columbus, Ohio



                               __________
            Mr. John Palafoutas, Senior Vice President, AeA



                               __________
               Ms. Linda Evans, Matthews, North Carolina



                               __________
    Mr. Billy Reed, Past President, American Engineering Association



                               __________
   Mr. John William Templeton, Coalition for Fair Employment in High 
                               Technology



                               __________
  Mr. Michael Emmons, Information Technology Professional, Longwood, 
                                Florida



                               __________
    Ms. Esther Massimini, Principal Engineer, Aerospace Electronics 
                               Honeywell



                               __________
 Mr. Henry G. Huestis, Electrical Engineer, Spokane Valley, Washington



                              ----------                              

Mr. Michael W. Gildea, Executive Director, Department for Professional 
                           Employees, AFL-CIO

    Chairman Hostettler, Representative Sheila Jackson Lee and members 
of the Committee:
    Thank you for the opportunity to present the views of our 
organization on the matter of the H-1B visa program. The Department for 
Professional Employees, AFL-CIO is a consortium of 22 national unions 
representing nearly 4 million professional and technical employees in 
both the public and private sectors.
    Today under U.S. immigration law there is a near alphabet's soup of 
professional visas under which foreign professional and technical 
workers can come to our shores. The H-1B, L-1, TN, I, O, P and other 
such visas all have one thing in common--each operate under different 
standards, limitations and rules of accountability and no 
interconnectivity exists between any of them.
    Given the adverse impact that most of these programs are having on 
U.S professionals--many of whom are either unemployed or 
underemployed--as well as on the non-immigrant workers themselves, now 
is the time for Congress to develop a more comprehensive, coordinated 
federal policy in this regard.
    What is particularly baffling about these programs, especially H-
1B, is that none of them correlate to the realities of the U.S. labor 
market. There exists no nexus between the current rates of occupational 
unemployment among professional and technical workers--which as of the 
end of 2005 is 40% higher than in 2000--and the fact that, according to 
some estimates, the total professional guest worker population is 
probably close to 750,000 when former H-1Bs who are illegally out of 
status are included. Programs like H-1B in effect force well qualified, 
American professionals to compete against foreign workers here in the 
U.S. for domestic jobs. In our opinion, there's something seriously 
wrong with that picture.
    As members of the Committee will recollect, H-1B was initially 
designed to address small, ``spot'' labor shortages of minimum 
duration. Our affiliated organizations have no problem with that basic 
concept. But we vehemently object to how this program has over time 
contorted into something completely contrary to its original intent and 
that now victimizes large numbers of highly skilled, American 
professionals.

    As Congress contemplates major changes in immigration law 
enforcement and perhaps new guest worker initiatives, now is the time 
to be asking tough questions and to consider real reforms in H-1B. 
Chief among them are:

          What is the total number of guest workers that should 
        be allowed into the U.S. under all such programs in periods of 
        high and low unemployment?

          To what extent should there be some uniformity across 
        all programs with regard to worker protections, employer 
        eligibility, visa duration and fees, guest worker 
        qualifications and credentials, enforcement and penalty 
        protocols, etc?

          Should U.S.-based employers each be limited in the 
        total number of temporary foreign workers that they can have on 
        the payroll from all guest worker programs?

          Are these programs contributing to the off-shoring of 
        American jobs?

          What impact, if any, are they having on the national 
        need to attract the best and the brightest American students 
        into critical undergraduate and graduate disciplines?

          Can multiple U.S. government agencies be reasonably 
        expected to manage, control and enforce the few standards that 
        apply to H-1B when the entirety of the nation's immigration 
        policy is a train wreck?

    A failure to dig deeply, to ascertain and fix existing problems 
within current programs will risk repeating the policy failures that 
now plague immigration law and perpetuate abuses that hurt American 
workers. We sincerely hope that this Committee will address these 
overarching issues before any consideration is given to raising the 
annual limits--``caps''--on H-1B visas.
    What follows is a brief summary of what we consider to be some of 
the more blatant abuses that have evolved under H-1B along with some 
suggestions for reform.

                     1. REPLACEMENT of U.S. WORKERS

    Background: At the hearing on 3/31/06, IT professional David Huber 
spoke eloquently about how an American company replaced him with H-1B 
workers and how difficult it has been for him to find other IT work. 
Sona Shah, a young well educated, highly skilled, Indian-American tech 
worker, told a similar story at 2004 hearings before the House 
International Relations Committee about her former company--a body shop 
where misuse of all kinds of visas was a daily exploit. Other 
statements will be submitted to the subcommittee by professionals 
recounting similar experiences. Often the indignity of losing they're 
job is compounded by the demand of the employer that the U.S. worker(s) 
train their replacements, sometimes as a pre-condition to receiving 
their severance pay or getting a good reference.
    This victimization of American workers is being played out everyday 
as domestic corporations shed their American workers here in the U.S. 
to hire lower cost visa workers. It should be a fundamental principle 
of immigration law that no professional worker in this country should 
ever have to live in fear of losing their livelihoods because federal 
law allowed a foreign guest worker to come here and take it away from 
them. Ironclad protections to guarantee that outcome are long overdue.

    Reforms:

          The 90 day, no layoff protections that now exist in 
        law but only for so-called ``H-1B impacted'' companies (defined 
        as having 15% or more of their workforce as H-1B visa holders) 
        should instead be applied to all companies.

          The 90 day standard should be extended to 180 days 
        and applied before and after the hiring of an H-1B visa worker.

          Improved safeguards should be coupled with stiff 
        penalties including civil fines and debarment for violations;

          Finally, any worker--U.S. or foreign--aggrieved by 
        violations of any H-1B protections should be given a private 
        right of action to sue an employer for such law breaking 
        activity.

                              2. VISA CAPS

    Background: Under current law, the annual statutory cap on H-1B 
visas is 65,000. However, a previously approved exemption for 
educational institutions, non-profits and other entities allows another 
27,500 foreign workers on average to come in to the U.S. At the end of 
2004 a Senate Committee initiated exemption--adopted as part of the 
Omnibus Appropriations bill--created still another cap loophole by 
adding on another 20,000 annual allotment for U.S. educated foreign 
workers with advanced degrees. In addition, since the ``temporary'' H-
1B visa is good for up to 6 years, according to government data some 
125,000 existing visa holders renew annually. As a result, under 
current law over 230,000 foreign professionals get new or renewed guest 
worker visas--and American jobs--each year!
    There is absolutely no economic justification for expanding the H-
1B program at this time. Unemployment among professionals in H-1B 
occupations remains high. For example, in Information Technology--the 
largest single business user of these visas--according to BLS data, 
joblessness for computer scientists/systems analysts, programmers, and 
software engineers is at 45%, 133%, and 115% higher respectively than 
in 2000--the year before the tech bust. Thus claims of labor shortages 
in key computer occupations are bogus particularly when weighed against 
wage data. If the laws of supply and demand are to be believed, then 
alleged shortages would produce significant wage hikes as employers bid 
up the price for scarce labor. In fact, real wages for computer 
scientists/systems analysts declined by nearly 7.5% from 2000-04 while 
income for IT workers in the other two categories barely grew above the 
rate of inflation. None of these wage improvements are indicative of a 
labor shortage.
    Finally it is worth pointing out that industry apologists for off-
shore outsourcing have long proclaimed that one of the benefits of 
globalization would be the creation of high end, high skilled technical 
and professional jobs for workers in the U.S. These same industries now 
seek to contract the number of these very same high end job 
opportunities that should otherwise be available to highly skilled 
American workers by vastly expanding the H-1B visa program.

    Reforms:

          Set a ``Hard Cap'' on the H-1B program with no annual 
        adjustment and eliminate all exemptions. Exemptions make a 
        mockery of any annual numerical cap and should be eliminated.

                            3. OVER-ISSUANCE

    Background: Twice in the last five years--once in FY 2000 and again 
in FY 2005--the INS/DHS over issued by a substantial amount the number 
of visas permitted under law. In 2000 the excess was some 23,000--an 
astounding 20% over the then annual cap of 115,000. And what was 
Congress' response to a federal agency unable to enforce an elemental 
standard in immigration law--they forgave the violation by sanctioning 
it in new statutory language and then proceeded to increase the cap 
from 115,000 to 195,000 with a new exemption. The inability of 
government to first enforce a fundamental legal requirement in the H-1B 
program coupled with Congress' eagerness to simply look the other way 
and ignore the transgression sent an unmistakable message to the 
private sector about compliance, oversight and enforcement. Then just 
last year, according to a Department of Homeland Security, OIG report 
requested by Chairman Hostettler and Senator Grassley and entitled 
USCIS of H-1B Petitions Exceeded 65,000 Cap in fy 2005, the over-
issuance was 7,000 visas or nearly 11% more than permitted by the 
65,000 cap. In its review the OIG cited these contributing factors:

          CIS officials at all levels in Washington, DC and at 
        the service centers were aware of and attempted to comply with 
        the statutory limit on the number of persons granted H-1B 
        status.

          However, CIS had neither the technology nor an 
        operational methodology to ensure compliance with the precise 
        statutory ceiling.

          Faced with the certainty of issuing either too few or 
        too many approvals, it had been CIS' explicit practice to avoid 
        approving too few.

          The CIS' ``business process,'' of taking all 
        petitions submitted before an announced cut-off date, 
        guarantees that an inexact number of petitions will be 
        approved.

          The structure of DHS handicaps counting efforts; a 
        complex adjudication process makes the count fluctuate;

          A complex counting process makes the cap a moving 
        target; and, an unexpected influx of petitions in mid-September 
        2004 swamped the cap counting process.

    In other words DHS can't count! And until the agency can guarantee 
to the Congress that it can and thereby enforce the law, there should 
be no increases in the H-1B yearly visa cap.

                              4. DURATION

    Background: A problem common to all of the professional guest 
worker programs including H-1B is the renew-ability of the visa. This 
issue was a major point of controversy regarding the misnamed 
``temporary entry'' provisions of the trade agreements whose one year 
visa can be renewed forever. Initially H-1B visas were good for only 3 
years. Now these guest workers can stay in the U.S. for at least six 
years (two, three year renewable visa terms) or longer if their 
paperwork to transition them to green card status is in the DOL 
pipeline. A program of six years duration does not anyone's definition 
of ``temporary'' and the program should be more limited.

    Reforms:

          Restrict H-1B visas to one, three year (non-
        renewable) term.

                         5. EMPLOYER ATTESTIONS

    Background: At the hearing on 3/31, Rep. Lamar Smith, the former 
chairman of the subcommittee and an author of many past pro-worker 
reform suggestions, expressed hi view that employer attestations are 
``unenforced and unenforceable.'' We concur.
    A law which relies on something akin to ``scout's honor'' for 
enforcement of the requirements that employers must make a ``good 
faith'' effort to recruit U.S. workers and not layoff Americans before 
applying for an H-1B visa is absurd. A decade ago, in a Department of 
Labor OIG Audit of ETA's Foreign Labor Programs Final Report'' No. 06-
96-002-03, US Department of Labor, 5/26/96(No. 06-96-002-0), found 
that, more often than not, employers:

        ``specifically tailor advertised job requirements to aliens' 
        qualifications. The jobs' education and experience requirements 
        were based on the aliens' qualifications, not on the skills 
        required to perform the work'' and that ``The special 
        requirements identified on the application appear to be 
        customized to fit the alien's qualifications rather than 
        represent actual job requirements. This appears to be 
        restrictive criteria to eliminate qualified U.S. workers.''

    Reforms:

          Eliminate and replace attestation process.

                    6. Prevailing Wage Determination

    Background: Although the H-1B program does have a prevailing wage 
requirement, it is ineffective because employers can fabricate a wage 
by supplying their own wage data instead of relying upon government 
wage information. The so-called ``prevailing wage determination 
process'', which is not subject to DOL rate setting and may or may not 
be based on a bona fide locally calculated wage rates, again provides 
employers with the ability to in effect set their own rates and pay far 
lower than the actual prevailing wage for a given professional 
occupation.
    Several government reviews again have identified this area as one 
wide open for fraud and abuse. The DoL's OIG audit referred to earlier 
found that:

        ``There is no certainty that U.S. workers' wages are protected 
        by the LCA [Labor Condition Application] program's requirement 
        that employers pay aliens the higher of the prevailing wage or 
        actual wage paid to their employees who are similarly 
        employed.''

        ``For 75% of all cases where the non-immigrant worked for the 
        petitioning employer, the employer did not adequately document 
        that the wage level specified on the LCA was the correct wage. 
        In their review of LCAs, the DOL regional Certifying Officers 
        do not verify or question if a public file [on the method of 
        determining the wage and the impact of the wage rate on similar 
        workers] actually exists. 8 U.S.C. 1182(n)(1) does not give 
        them the authority to do so. ``The Labor Condition Application 
        Program is being manipulated beyond its intent of providing 
        employers the best and brightest in the international labor 
        market while protecting the wage levels of U.S. workers.''

        ``Even where the employer adequately documented the wage paid, 
        19% of the aliens were paid less than the wage specified on the 
        LCA.''

    Four years later, The U.S. General Accounting Office in its May 
2000 report H1B Foreign Workers, Better Controls Needed to Help 
Employers and Protect Workers found wage chiseling in over 4 out of 5 
cases it investigated:

        ``WHD (DoL's Wage and Hour Division) is significantly more 
        likely to find violations in H-1bB (back wage) complaints than 
        in complaint cases under other (wage and hour) laws. . .over 
        the last four and a half years, 83% of the closed H-1B 
        investigations found violations--compared to about 40 to 60 
        percent under other labor laws''

    Requiring the payment of a real and enforceable prevailing wage to 
H-1B workers would discourage those who would try to use the program as 
a back door to cheap labor.

    Reforms:

          Employers petitioning for H-1B workers must pay the 
        higher of:

                  the locally determined prevailing wage level 
                for the occupational classification in the area of 
                employment;
                  the median average wage for all workers in 
                the occupational classification in the area of 
                employment; or
                  the median wage for skill level two in the 
                occupational classification found in the most recent 
                Occupational Employment Statistics survey;

          In order to better keep track of H-1B workers and 
        insure that they are paid the appropriate pay, employers should 
        be required to file a copy of the workers' yearly W-2 form with 
        the DOL/INS.

          Penalties--Subject employers who violate prevailing 
        wage requirements to both double back pay awards common in 
        other labor laws to aggrieved foreign workers coupled with 
        employer debarment from the program. These kinds of punitive 
        remedies will make employers think twice about using H-1B for 
        purposes of worker exploitation.

                                7. Fraud

    Background: Falsified immigration documents, bogus credentials, 
sham employer attestations, phony applications, forged petitions on 
behalf of unknowing employers, wage chiseling and other scams are just 
some of the litany of illegalities uncovered by investigators at four 
federal agencies. According to the Semiannual Report of the Office of 
Inspector General (OIG) to the Congress'' April-September 30, 2000:

        ``The OIG [DOL Office of Inspector General] continues to 
        identify fraud in the labor certification program, particularly 
        in the H-1B temporary work visa program. These cases involve 
        fraudulent petitions that are filed with DOL on behalf of 
        fictitious companies and corporations; individuals who file 
        petitions using the names of legitimate companies and 
        corporations without their knowledge or permission; and 
        increasing numbers of immigration attorneys and labor brokers 
        who collect fees and file fraudulent applications on behalf of 
        aliens. Based on prior investigative and audit work that found 
        programmatic weaknesses and vulnerabilities in the program, the 
        OIG remains concerned about the potential for increased fraud 
        in this area.''

        ``The OIG has averaged 14 indictments and 11 convictions per 
        year for labor certification fraud over the prior [1996] five-
        year period.''

    And in the DoL's 1996 OIG audit:

        ``Some aliens are themselves the petitioning employer, thereby 
        filing petitions on their own behalf.''

    Many of these abuses have been traced to outsourcing companies, 
a.k.a. ``body shops'' who bring in foreign workers by the tens of 
thousands and then subcontract them out to other businesses. We doubt 
that the Congress envisioned the likes of Tata Consultancy Services, 
Wipro Technologies, and Infosys Technologies--all Indian owned firms--
when it created this program. These firms are now among the biggest 
users of H-1B supplying Indian IT talent to a who's who of the fortune 
500 corporations. Some of these firms and others like them have had a 
troubled history under the H-1B program. In fact, prior legislation 
relating to H-1B has specifically addressed abusive practices by them 
such as benching.

    Reforms:

          Ban ``body shop'' access to the program--Congress 
        should apply the same restrictive language it adopted in 2004 
        to the L-1 visa program and prohibit access to this program by 
        anyone other than the primary employer.

          Require employers to file electronically with the DOL 
        key information about each H-1B hire--name, country of origin, 
        academic degree, job title, start date, salary level. The DOL 
        shall then make such data available on the Internet.

                   8. QUALIFICATIONS AND CREDENTIALS

    Background: H-1Bs are supposed to be highly skilled professionals 
with the requisite academic degree. But even this standard is undercut 
by language that allows a vague degree equivalency, such as work 
experience, to suffice. In addition there is no system in place to 
verify that those with degrees have valid credentials or that they are 
equivalent to a U.S. degree.

    As far back as 1999, the accusations that H-1B applicants falsify 
job experience and education were exposed. In testimony on May 5th of 
that year before the Subcommittee during hearings on Nonimmigrant Visa 
Abuse:

          Jacquelyn Williams-Bridgers, State Dept. Inspector 
        General, stated that attempts to falsify, alter, or counterfeit 
        U.S. visas or passports and attempting to obtain false 
        documents to obtain visas is a ``constant problem both within 
        the U.S. and overseas.''

          Jill Esposito, State Dept. Post Liaison Division, 
        Visa Office, Bureau of Consular Affairs, backed up Yates' 
        statement that documents are routinely falsified. She said 
        that, although many foreign workers in the U.S. on nonimmigrant 
        visas are here legally and properly, there are ``thousands of 
        marginally qualified applicants (who) are also entering the 
        United States in the H-1B and L-1 categories.''

    Ms. Esposito also detailed a year-long joint INS and Department of 
State initiative which focused on the American Consulate in Chennai, 
India, which issued more than 20,000 H-1B visas in Fiscal Year 1998--
more than any overseas post. The investigation found that 45 percent of 
the 3,247 work experience claims made to the INS were fraudulent.

    Reforms:

          Current law allows H-1B applicants to have a college 
        degree or the ``equivalent''. This sets a highly subjective 
        standard that is most difficult to apply and often abused. Work 
        experience should not be a substitute for the required academic 
        credentials. This vaguely-worded equivalency standard should be 
        eliminated.

          At present there is no procedure in place for 
        checking on the validity of a college degree cited to support 
        an H-1B petition. The Secretary of State through its consular 
        offices that issue the visas (or another appropriate federal 
        agency) should determine whether such a degree has been granted 
        by a bona fide institution of higher education (authenticity) 
        and is equivalent to college degrees obtained in the U.S.

          To assure that H-1B visas are mainly allocated for 
        use by the most highly skilled and educated, a ``carve out'' 
        beginning at 40% and increasing to at least 50% of the total 
        number of visas should be reserved for ``guest workers'' 
        possessing a master degree or higher.

                 9. ENFORCEMENT AND OVERSIGHT REMEDIES

    Background:
    According to the DoL's own Inspector General as well as the GAO, 
federal enforcement mechanisms are woefully inadequate to compel 
employer compliance with even the weak safeguards that exist under the 
H-1B program that are supposedly designed to protect American workers. 
Penalties for violations and outright fraud are too meager to induce 
compliance.

    In this regard, the 2000 GAO study referenced earlier in this 
statement included the following findings:

        ``Labor's [U.S. Department of Labor] limited legal authority to 
        enforce the program's requirements and weakness in INS' program 
        administration leave the program vulnerable to abuse. Under the 
        law, in certifying employers' initial requests for H-1B 
        workers, Labor is limited to ensuring that the employer's 
        application form has no obvious errors or omissions. It does 
        not have the authority to verify whether information provided 
        by employers on labor conditions, such as wages is correct.''

        ``There is not sufficient assurance that INS reviews are 
        adequate for detecting program noncompliance or abuse.''

        ``However, as the program currently operates, the goals of 
        preventing abuse of the program are not being achieved. Limited 
        by law, Labor's review of the LCA [labor certification 
        application] is perfunctory and adds little assurance that the 
        labor conditions employers' attest to actually exist. Expanding 
        Labor's authority to question information on the LCA would 
        provide additional assurance that labor conditions are being 
        met"

    Reforms:

          To protect American and visa employees who discover 
        abuses, whistle-blower safeguards should be implemented so that 
        either can report employer misconduct to the appropriate 
        federal agency without fear of reprisal.

          Department of Labor (DoL) enforcement authority 
        should be beefed up to monitor L-1 usage through random surveys 
        and compliance audits, investigate and adjudicate complaints 
        and impose penalties where warranted. Automatic audits for 
        employers with over certain number of guest workers should be 
        mandated and DOL investigations of suspected misconduct should 
        be allowed without the necessity of having to have a complaint 
        as justification.

          Strict timelines be imposed for the response, 
        processing and administrative adjudication of complaints by 
        DoL; Administrative and /enforcement functions should be 
        centralized in one federal agency--DoL.

          Disallow employers from forum shopping, e.g. 
        appealing an adverse DOL decision on the LCA to the INS.

          To allow for careful review of H-1B applications, the 
        practice of submitting blanket petitions for multiple workers 
        should be eliminated;

          Civil penalties should also be applied for 
        misrepresentation or fraud related to the information submitted 
        on the visa application;

          Congress should mandate appropriate data collection 
        protocols and timelines for reports by the relevant federal 
        agencies to assist Congress with its oversight of this program.

                        10. OFFSHORE OUTSOURCING

    Finally, there is one last issue that the Committee should be 
cognizant of, and that is the likelihood that visa programs like H-1B 
are directly contributing to the outsourcing of U.S. professional and 
technical jobs overseas. This matter has been the focus of several 
hearings in the House Small Business Committee and we commend Chairman 
Manzullo for his past efforts in this regard.
    Every day in newspapers around the nation we read more articles 
about how U.S. firms are now exporting white collar jobs. The reason I 
raise it in the context of this review is that there is a connecting 
thread. And that is Tata Consultancy Services, Wipro Technologies, and 
Infosys Technologies--the Indian- owned firms I mentioned earlier.
    These firms are not just brokerage houses for H-1B, L-1 and other 
visas. They are among the primary culprits involved in the heist of 
hundreds of thousands of U.S. jobs and tens of millions in payroll. It 
goes something like this: First they contract with an U.S. based firm 
to perform a tech related service like software development or 
maintenance. Then they bring in the Indian guest workers by the 
thousands to do the work here at bargain basement rates. As committee 
members may already know, India is by far the largest user H-1B and L-1 
visas. Once the team of temporary workers has the knowledge, and 
technical skills--sometimes after being trained by U.S. workers--as 
much of the work that is technically feasible to off-shore is then 
carted back to India. There, the same Indian firms that stoke the visa 
pipeline are facilitating the creation high tech centers that employ 
hundreds of Indian nationals to do the work formally done by American 
professionals.
    An earlier study by Forrester Research estimates that if current 
trends continue over the next 15 years the U.S. will lose 3.3 million 
high end service jobs and $136 billion in wages. Other recent studies 
predict the same or higher levels of jobs and salary losses. In one key 
segment of the tech industry, Jon Piot CEO of Impact Innovations Group 
in Dallas says that ``software development in the U. S. will be 
extinct. . .with gradual job losses much like the U.S. textile industry 
experienced during the last quarter of the 20th century.'' Today major 
U.S. firms from many sectors are falling all over themselves to climb 
on the outsourcing bandwagon.
    As they used to say in one of this nation's' greatest technology 
initiatives, the space program--``Houston we've got a problem''. And I 
would suggest it's a big one. Only this time it's not those textile, 
steel, machine tool and other manufacturing jobs; many of them are long 
gone. Now it's the high tech, high end, high paying jobs that are 
headed out of town. These are the same jobs that we were smugly assured 
by free trade advocates the U.S. would retain as our manufacturing base 
was exported. The question for federal legislators is to what extent 
are the professional guest worker programs contributing to the 
outsourcing tidal wave. I would suggest that it is significant.
    In conclusion, professional and technical workers in this nation 
have made enormous personal sacrifices to gain the education and 
training necessary to compete for the knowledge jobs in the so-called 
new American economy. They deserve better than to be victimized by 
immigration programs like H-1B. Congress can make a long, overdue start 
in cleaning up the guest worker visa mess by implementing badly-needed 
reforms. At a time when so many American professionals are out of work, 
from our perspective public policy inaction to clean up the H-1B visa 
mess is not an option. Until that is achieved there should be no 
increase in the H-1B annual visa limits.

                              ----------                              

 Mr. Mark A. Powell, Information Technology Professional, Westminster, 
                               California



                              ----------                              

      Ms. Lynn Shotwell, Executive Director, American Council on 
                        International Personnel

    April 5, 2006

    Honorable John N. Hostettler, Chairman
    Immigration, Border Security and Claims Subcommittee
    United States House of Representatives
    B-370B Rayburn House Office Building
    Washington, DC 20515-6217

    Re: Subcommittee Hearing on H-1B Worker Visas

    Dear Chairman Hostettler:

    We appreciate the Subcommittee's March 30th hearing addressing the 
critical issue of whether Congress should raise the H-1B cap. While we 
are disappointed that the Subcommittee did not opt to hear from U.S. 
employers concerning this important matter, we are pleased to submit 
these comments for the record.

    The American Council on International Personnel (ACIP) represents 
over 200 multinational employers, ranging from leading U.S. high-tech, 
manufacturing, healthcare and service companies to some of the nation's 
premier research and academic institutions. ACIP members rely on the H-
1B program to maintain a competitive workforce. Over half of the H-1B 
visas go to professionals holding advanced degrees, primarily from U.S. 
universities. Thus, American employers recruiting at American 
universities are competitively disadvantaged by the unavailability of 
H-1B visas. The visa is used by a wide array of professionals 
including, physicians, teachers, scientific researchers, engineers, 
architects, lawyers, accountants, marketing experts, and many others 
who provide direct services to Americans and create new American jobs 
and products.

    The existing H-1B quotas do not support American competitiveness 
and innovation. In 2005, foreign nationals earned more than 40 percent 
of the master's degrees and 60 percent of the PhDs in engineering 
awarded by American universities. We are delighted that already this 
year 2.1 million jobs have been created and that U.S. unemployment 
stands at 4.9%--full employment. The U.S. Department of Labor estimates 
that between 2002 and 2012 there will be 2 million more job openings in 
America alone in the fields of computer science, mathematics, 
engineering and the physical sciences. Worldwide competition for this 
talent is fierce yet American employers are hamstrung in their efforts 
to recruit and retain scientific and engineering talent.

    On August 10, 2005 the H-1B cap was exhausted nearly two months 
prior to the beginning of fiscal year 2006 (FY06). Additionally, in 
January 2006, the H-1B FY06 advanced degree cap exemption was also 
prematurely exhausted. Both cap exhaustions leave a variety of business 
sectors, medical facilities and educational institutions unable to hire 
new H-1B workers until October 1, 2006, an unfortunate result in an 
innovative market. The best talent will continue to be lost to our 
competitors year in and year out until our quotas reflect market 
demands. U.S. employers need predictability to remain competitive in 
today's global economy, one that could be provided through a market-
based H-1B cap.

    We disagree with certain critics of reform who argue that the 
global flow of talented students and employees only hurt America's 
homegrown workforce and lower U.S. worker wages. Quite the contrary, 
these innovative foreign nationals fill jobs that currently would 
remain unfilled and additionally create new American jobs. We believe 
that in the worldwide economy companies will move to where the skilled 
and educated workers are if not given the option to bring that talent 
here and pay them the higher of the actual or prevailing wage. In fact, 
if it were about cheap wages as critics argue, why would any American 
employers use the H-1B program at all? They would not; instead they 
would send all work overseas. But, of course, quite the opposite is 
true as American employers continue to exhaust the cap early each 
fiscal year and struggle to recruit the workers they need to keep jobs 
at home.

    America's ability to attract and retain the best foreign talent is 
increasingly at risk. In addition to the H-1B cap, foreign 
professionals face years long processing delays and unavailability of 
green cards. Visa retrogression has forced thousands of foreign 
professionals from countries around the world to wait up to five years 
to get a green card. Most of these professionals have already been in 
America for upwards of a decade and this unavailability forces them to 
put their lives on hold even longer. These backlogs unfortunately 
result in U.S. employers losing many foreign professionals to 
competition abroad.

    ACIP encourages the Subcommittee to consider legislation that 
includes the following solutions to keep America and U.S. employers on 
the cutting edge of innovation: (1) a market-based cap for H-1B visas; 
(2) exemptions from the employment-based immigrant visa caps for 
workers needed for their knowledge or contributions to innovation in 
fields like science, technology, engineering and mathematics; and (3) a 
direct path to green card for advanced degree graduates of American 
universities.

    We look forward to working with the Subcommittee, the full 
Committee and the entire U.S. House of Representatives as we proceed on 
immigration reform this year.

    Sincerely,
    Lynn Shotwell
    Executive Director
    American Council on International Personnel

                              ----------                              

               Ms. Sandra J. Boyd, Chair, Compete America

    April 6, 2006

    Honorable John N. Hostettler, Chairman
    Immigration, Border Security and Claims Subcommittee
    United States House of Representatives
    B-370B Rayburn House Office Building
    Washington, DC 20515-6217

    Re: March 30, 2006 Subcommittee Hearing on H-1B Visas

    Dear Chairman Hostettler:

    On behalf of Compete America, a coalition of more than 200 
corporations, universities, research institutions and trade 
associations concerned about legal, employment-based immigration, I 
would like to thank you for addressing the important issue of H-1B 
visas in the Subcommittee's March 30th 2006 hearing. Our membership is 
committed to ensuring that the United States has the highly educated 
workforce necessary to ensure continued innovation, job creation and 
leadership in a worldwide economy, and the H-1B visa program is 
critical to achieving this goal. Because none of our members were able 
to participate in the Subcommittee's hearing, we would like to add our 
comments to the official hearing record.

    The title of the hearing ``Should Congress Raise the H-1B Cap?'' 
asks a very important and timely question given the attention focused 
on immigration reform in both houses of Congress. We believe, however, 
that to fully address the issues facing U.S. employers and their 
insufficient access to highly educated foreign talent, the Subcommittee 
must also look at the problems with the employment based (EB) visa or 
``green card'' system. We urge the Subcommittee to schedule a follow-up 
hearing to specifically address the issues facing U.S. employers and 
tens of thousands of valued U.S. employees now caught in the woefully 
inadequate EB visa system.

    Compete America members believe now is the time to fix both the 
outdated and counterproductive H-1B and EB visa programs. The current 
system for legal immigration hurts U.S. competitiveness by making it 
too hard for highly educated, sought after foreign professionals to 
come to the United States to live and work.

    H-1B shortages are well documented, and the backlogs in the green 
card system are only getting worse, forcing thousands of valued 
foreign-born professionals - including researchers, scientists, 
teachers and engineers - into legal and professional limbo for years.

    America benefits from the contributions of highly educated foreign 
nationals, whether they are here on temporary H-1B visas, or as 
permanent residents. Both the H-1B and EB visa programs have been 
responsible for bringing much needed foreign talent to live and work in 
the United States, and most importantly, to make significant 
contributions to our economy and our global competitiveness.

H-1B Visas

    H-1B visas give employers access to highly educated foreign 
professionals who work in the United States temporarily to fill a 
specialty occupation. Under current law the program is capped at 
65,000, down from 195,000 in FY 2003. The FY2006 cap was exhausted on 
August 10, 2005, nearly two months prior to the beginning of the new 
fiscal year. This marked the seventh time since 1997 that the H-1B cap 
has been reached before the end of the fiscal year and the second year 
in a row that it has been reached on or before the start of the fiscal 
year. (August 1997, May 1998, June 1999, March 2000, February 2004, 
October 2005, August 2005).

    With no access to H-1B talent, a variety of business sectors, 
medical facilities and educational institutions are being adversely 
impacted. U.S. employers need predictability - something the current 
system does not provide.

    Nevertheless, the H-1B visa remains an important tool, especially 
for hiring foreign nationals who receive their advanced degrees from 
U.S. universities.

    In many critical disciplines, particularly in math, science and 
engineering, 50% or more of the post-graduate degrees at U.S. 
universities are awarded to foreign nationals. For example, in 
electrical engineering, 55% of master's and 68% of PhD graduates of 
U.S. programs in 2005 were foreign students.

    In FY 2005, Congress recognized the growing problem and added an 
additional 20,000 H-1B visas as a set-aside for foreign graduates of 
U.S. universities receiving their Master's or PhD. In January 2006, 
only four months into the fiscal year, this cap was also reached.

    The numbers Congress has allotted for H-1B visas are clearly 
inadequate to meet the demand - and it is clearly a counterproductive 
system that trains foreign scientists and engineers and then sends them 
home to compete against American businesses.

    We were gratified that President Bush has acknowledged the problem 
facing U.S. employers and has called for the H-1B cap to be raised. We 
hope the Congress will do so this year.

EB Visas

    Employment-based (EB) green cards are provided to foreign nationals 
who are seeking permanent residence and are sponsored by employers to 
work in the United States. EB green card holders are well-educated job 
creators who must pass strict labor market tests in order to be 
eligible for admission. The annual EB green card cap of 140,000 is 
allocated equally among all countries and covers five worker 
preferences.

    The 140,000 number, however, is misleading. Unlike H-1B numbers, 
spouses and dependents are counted against the EB visa cap - greatly 
reducing the number available to highly educated workers.

    A further complication is the individual country quotas mandated by 
the system. For professionals born in high-demand countries, such as 
India and China, the wait can span up to five additional years beyond 
the normal adjudication process of two to three years, even if the 
overall visa limit is not reached.

    Because of the tremendous backlogs in the processing of EB green 
card applications, tens of thousands of highly trained and sought-after 
professionals must wait far too long for processing - with no assurance 
of outcome. Many simply abandon their efforts and return home or move 
to more welcoming countries - including Canada, Australia and the EU - 
that are direct economic competitors of the United States.

    This is just a glimpse into the quagmire we call the green card 
system.

    Both the H-1B and EB visa programs have been responsible for 
bringing much needed foreign talent to live and work in the United 
States, and most importantly, to make significant contributions to the 
U.S. economy and U.S. global competitiveness. Compete America members 
believe that any immigration reform legislation must include the 
following:

          a market-based cap on H-1B visas;

          exemptions from EB caps for an expanded group of 
        workers that are needed for their knowledge or contributions to 
        innovation in fields like science, technology, engineering and 
        mathematics (STEM);

          an easing of visa requirements for prospective 
        foreign students seeking to pursue advanced degree study in the 
        U.S.; and

          a direct path to green cards for advanced degree 
        graduates of U.S. universities.

    U.S. employers need the ability to employ the highly educated 
workers they need to stay competitive and keep jobs here in the United 
States. Unlike ever before, the United States is in a fierce worldwide 
competition for top talent. As our competitors have stepped up efforts 
to attract these workers, the current U.S. immigration system is 
preventing U.S. businesses, universities, medical institutions and 
research centers from hiring much-needed highly educated foreign-born 
talent.

    If America is serious about remaining the world's innovation and 
technology leader, we must fix a broken system preventing the legal 
employment of highly educated and sought after foreign professionals.

    Thank you for this opportunity to present our views. I have 
attached a March 27, 2006 editorial from the Wall Street Journal that 
offers an excellent summary of the issue. I would ask that it also be 
included in the hearing record. Compete America looks forward to 
working with you and the Subcommittee to as the debate on immigration 
reform continues.

    Sincerely,

    Sandra J. Boyd
    Chair, Compete America

                              ----------                              

The Institute of Electrical & Electronics Engineers - United States of 
                                America



                               __________
    Ms. Toni L. Chester, Software Developer, Bloomsbury, New Jersey

    April 4, 2006

    The Honorable John N. Hostettler
    Chairman
    House Judiciary Subcommittee on Immigration
    B-370B Rayburn House Office Building
    U.S. House of Representatives
    Washington, DC 20515-6217

    Honorable Hostettler:

    I would like to take this opportunity to thank you personally for 
holding this hearing concerning the H-1B Visa Program and its impact on 
the American Technical Experts, like myself, in addition to the long 
term effects upon the country. I greatly appreciate the courtesy you 
have extended to us by allowing the opportunity for American Workers to 
offer comments for the hearing record. Thank you.

    Please note this is just a brief synopsis of my experience with 
guest workers in this country on an H-1B Visa. I have much more to 
share, but due to content restrictions, I have limited my testimony to 
only a few.

    Please do not hesitate to contact me directly concerning my 
experiences. I would be more than happy to share additional information 
with you.

    I hereby swear that the testimony you are about to receive is true 
and accurate.

    Sincerely,

    Ms. Toni L. Chester
    Sr. Software Engineer
    102 Bradford Lane, Bloomsbury, NJ 08804
    [email protected]
    908-479-4114
    212-259-7138 (daytime)

    Attachment: My experience with the H-1B Visa Program
    My name is Toni L. Chester. I am a forty two (42) year old female 
American technical worker with one son who I have raised alone. I have 
over seventeen (17) years of technical industry experience. My academic 
background entails a Bachelor of Science degree in Applied Mathematics, 
a Bachelor of Science degree in Statistics; I am four courses shy of a 
Bachelor of Science Degree in Computer Science. My academic focus was 
on engineering and computer science in addition to my specified majors. 
Today, I share my story, on behalf of hundreds of thousands of American 
Technical Workers.

    At the age of nine (9), I was so engrossed and in love with 
Mathematics that I purchased my first algebra books at a flea market in 
Massachusetts. My love of math continued in High School where I 
excelled pursing an advanced program of study.

    In my senior year, I had planned to go to college and become a 
Mathematics Professor. I was pulled aside by my physics teacher. He 
introduced me to the discipline of engineering. He encouraged me to 
pursue a career and education in Engineering. After all, it was the 
future of this country.

    From here, I went to college and obtained my degrees. I had my son. 
I went to work.

    I worked in the engineering discipline for seven and one half 
years. During this time, I became much more heavily involved with 
computers and programming. Although my academic background contained 
extensive work in the programming disciplines, I had not had the 
opportunity to fully utilize the skills. With my background in 
programming, I quickly moved from Steam Turbine Engineering to Software 
Development, a field in which I excelled.

    I was quickly given increasing responsibility, frequently being 
named team lead for my assignments. I worked primarily as a contract 
employee for many leading companies including AT&T, Pricewaterhouse 
Coopers, Lucent Technologies, Ernst & Young.

    My first experience with the H-1B Visa program occurred at AT&T in 
Piscattaway, New Jersey. The development team I was on, was comprised 
of two American developers and three H-1B contract developers. Through 
conversation with my teammates, I learned that Noel Desouza, Ramkumar 
(Ram) and Subramanian (Subu) were in the United States through the H-1B 
guest worker program. Ram and Subu were young men lacking experience. 
Noel was a few years older, male and experienced. They all made 
significantly less than me. Through various discussions, I learned that 
Ram and Subu were paid around $40,000 annually whereas Noel was paid a 
bit higher. At the time, my salary was $65,000 per year with benefits. 
Subu barely spoke English and assignments had to be dictated down to 
the algorithm (step-by-step instruction) level. This took time and 
energy. Another programmer could complete the work in the time that it 
took to provide the instruction to him. Subu and Ram were soon replaced 
for nonperformance and failing to report to work. The replacements, 
Sagar and Kalyan, were once again young, male H-1B visa holders in 
their 20s. Our team spent a great amount of time together. We often 
discussed our backgrounds and how my teammates had come to work in the 
United States. There were no Americans considered for the positions. I 
am aware that no Americans were considered for the positions because I 
was among the team of developers conducting the interviews.

    Many times, I was put in a position to mentor or train my H-1B 
peers. At the time, I had no idea that they were in my country to be my 
replacements. Nor did I realize that the program afforded corporations 
a means to rapidly escalate the off-shore outsourcing process. The H-1B 
Visa program is the CATALYST to off-shore outsourcing. Workers are 
brought to the United States, trained by their American peers, taught 
project details. The Americans are terminated and the jobs are lost. In 
the summer of 2003, I read an article concerning my area of expertise 
and how the positions had been moved primarily to India.

    I was terminated from my contract assignment on the Agere Systems 
spin project while two young, male, h-1B guest workers from India, 
Permjit Ghotra and Vic, more than 10 years my junior were retained. 
This decision was based on the recommendations of an employee, 
Charanjit Momi. The customer of my services had no input into the 
decision. The only remaining female, the only remaining American on the 
team was discharged. At the time, I had just turned 38 years old, I had 
significantly more experience than my peers and I was the only United 
States citizen. My skills were not inferior, as I was leading most of 
the effort. I was often contacted by Vic to assist in his job. When I 
learned that my contract was ending, I was told to be professional and 
to train my peer in the work I was doing. My last day was August 31, 
2001.

    I was aware that both men were here on an H-1B Visa due to 
conversations between us. Permjit had returned to India during the 
course of the project. At that time, he was required to renew his visa, 
and was thus detained. During this time, he did not communicate with 
us, so I proceeded with the work alone, having no knowledge of the 
status of his tasks. Vic joined the IBM team in the Spring of 2001. 
There were no American workers considered for position. Through 
conversation, I learned that Vic had been on an assignment in 
California prior to his arrival in Pennsylvania. He had not been in the 
country very long. We spoke quite frequently because I was his source 
of transportation for his visits to the Berkeley Heights, NJ location 
of Agere Systems.

    Permjit and I were brought on this project to migrate computer 
applications from Lucent Technologies to enable Agere Systems to move 
forward toward their IPO. I joined the project first. Second came 
Permjit, a young man with whom I had worked in the past. We had the 
mission to complete the work quickly and without flaw. Upon his return, 
the project had to move quickly. We had limited time to migrate all the 
code and the data contained within the Lucent application. As this 
computer system addressed the Intellectual Property of the corporation, 
the data migration had to be completed with diligence to allow for the 
physical separation of the two companies.

    In the meantime, my direct management changed. I was not introduced 
to the new manager, nor was he introduced to me. Permjit was introduced 
to the new manager by Charanjit Momi. He was engaged immediately. I was 
told that the new manager was too busy and didn't have time to meet 
with me. Several months later, I introduced myself. That was all the 
contact I had with him until weeks before my contract was terminated. 
On the afternoon of Monday, August 20, 2001, I was phoned by my 
consulting firm. I learned in that conversation that my contract would 
end on August 31, 2001. The H-1B guest worker, Permjit Ghotra, was 
being retained.

    In the coming weeks, I would learn that jobs were not so easily 
found. This was the first time in my life that I filed for 
unemployment.

    At the end of September, 2001, I landed an opportunity that took me 
back years in my experience. I was no longer using my current skills. 
Although I knew from the interview that the fit was not good, I had no 
choice. I could not decline the job by law. If an offer is made, I had 
a legal obligation to accept it. This position lasted just over a 
month. In November 2001, I began my long term unemployment. I didn't 
even have a chance to fight for a job. By January 2002, I was 
submitting as many resumes as possible regardless of the location. Many 
positions were only available for a window of two hours. There were so 
many resume submissions that they could not address all the candidates. 
Through conversations with local recruiters, I later learned that for 
every position posted there was a minimum of a thousand resumes 
presented.

    Times were rough. I had quickly depleted my available funds. 
Unemployment paid only a fraction of my mortgage. I could not pay my 
bills. In July 2002, my unemployment compensation was exhausted. I had 
obtained one extension. I had only worked three days since November 
2001. Afterwards, I ended up living on my tax return. In September, I 
landed a six week opportunity. The money was low, but it was better 
than nothing. I was now making significantly less than before, had no 
opportunity for overtime, had no vacation, holiday or sick pay. I had 
to commute 75-80 miles each way. The project goals were unrealistic. 
The company was Accenture.

    After completing the assignment, I opened a new unemployment claim. 
Over the duration of my unemployment, I had seen one particular job, 
through Crimson Precision, pop up frequently. Each time, I submitted my 
resume and received no response. Finally, in November 2002, I learned 
that the project had gone awry and that the existing development team 
was being replaced. The assignment was with Pricewaterhouse Coopers. I 
heard nothing more. Just days before Christmas 2002, I saw the job 
again. I contacted the company. I passed the technical interview, was 
hired, started the following day. I learned that three foreign guest 
had to be terminated for failure to produce. My role was technical 
writer, with an hourly rate $25/hour less than my previous assignments. 
I quickly escalated to the lead developer position. I was not offered 
monetary compensation for the change in position. The assignment was in 
Manhattan. My commute was 85-90 miles each direction and took hours. I 
completed the application in 10 months, mostly alone. The project had 
run several months prior to my arrival. During this time I was 
unemployed despite being more than qualified to do the job. Once I was 
given the opportunity I proved I was more than up to the challenge. My 
employer just didn't think to offer it to me until they had exhausted 
their supply of H-1Bs.

    After completing this assignment in September 2003, I was again 
unemployed. This time, I changed my approach. I sought out Indian based 
consulting firms. I recalled that Indotronics had supplied the H-1B 
guest workers to AT&T. Thus, I sent my resume to the Indian branch of 
Indotronics. I was contacted quickly by recruiters across the country. 
Discussions began. I was advised of an opportunity at Lucent 
Technologies in Murray Hill, NJ. The hourly rate for the position was 
between $28 and $30/ hour. The contract was offered through IBM INDIA. 
The rates were as is, no benefits. Previously, I had been paid $70-75 /
hour with benefits for a similar position at the same client. I thanked 
them for contacting me and graciously declined.

    My income has dropped dramatically. I have no vacation, no sick 
pay, no holiday pay, no medical insurance. When afforded an 
opportunity, I must work every day to barely make ends meet, which they 
frequently don't.

    We have had no Christmas in years: Thanksgiving is just another 
day. There is nothing to celebrate, no money for a celebration. In 
October 2002, my cable was disconnected. We have had no television 
since October 2002.

    This situation has adversely impacted my son's life. My son is a 
vibrant, young, intelligent minority who wishes to someday pursue the 
field of Electrical Engineering. He graduated from high school in June 
2005 with honors. He passed both the AP Exam in Calculus and the AP 
Exam in Chemistry. Today, he sits at home waiting for his chance. He 
did not attend college this year because of my financial woes.

    In the spring of 2002, while unemployed, having no prospects in 
site, I had a long talk with my son. The reality had struck, my 
education and experience was worthless. I told my son that a college 
education was not a viable avenue or path to pursue. This discussion 
was very devastating for me. I had to come to the conclusion that my 
career was over and that my educational and career achievements had no 
value, at least not in my country. At the time, he was 14 years old.

    Today, I am forced to live my life in 3 day, 3 week, 2 month, 3 
month or 6 month intervals. Nothing is long term. Nothing pays as it 
had a few years back. In order to survive, I must work every business 
day that is available to me. I don't get vacation or sick time. My 
commute is long and tedious. I pay the employers portion of Social 
Security.

    Every day, I live in fear. I can no longer answer my phone. I'm 
afraid to pay my bills. Survival is all that I know today. I have no 
idea how long an assignment will last, thus I have to hoard money in 
preparation for another long term stay in the unemployment chain. This 
is the life of an American Technical Worker.

    For the past four and a half months I have been unemployed. The 
last assignment paid $30/hour less than my going rate; the company, 
ISI, was in the midst of off-shore outsourcing to India.

    The H-1B program is being used to displace American Technical 
workers from their opportunities. The H-1B program, in many cases, 
brings young, less experienced, foreign, predominantly male workers 
into the country. The American workers are told to train their 
replacements, then dismissed. I know, because I have done it. I 
frequently see opportunities listed on job boards seeking only H-1B 
Visa holders. I have contacted the firms. I have been told that there 
are no jobs. I have contacted the firms about the FREE training they 
presumably offer. Most times, they don't respond. When I ask to be 
offered the training opportunities available, they never call back.

    Five years ago I was one of the most qualified, most skilled and 
most sought after IT professionals in the country. I have an excellent 
education in mathematics, statistics and computer programming. My work 
history is spotless. Yet I am unemployable. I hear that American 
businesses want hundreds of thousands of H-1B workers next year to fill 
jobs ``no American can do.'' I am here. I can do these jobs.

    Nobody calls. Today, I have a homeless plan.

                              ----------                              

                             Shahid Sheikh



                               __________
         Letter from Mr. Jack Krumholtz, Microsoft Corporation



                                 
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