STATEMENT OF

CHARLES FOSTER

TINDALL & FOSTER, PC

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

ON

OVERRSIGHT HEARING ON THE TEMPORARY PROFESSIONAL

WORKER VISA PROGRAM

AUGUST 5, 1999

Mr. Chairman, Ranking Member Jackson Lee, and distinguished Members of the Subcommittee:

My name is Charles Foster, and I am pleased to be here today to testify on the importance of, and continuing demand for, the temporary foreign professional visa program (commonly known as H-1B visas). This visa program allows vitally needed foreign professionals to enter this country to fill urgent business needs in a global economy. The increased need for these professionals, as we now know, was not adequately addressed by the recent passage of the American Competitiveness and Workforce Improvement Act. We must do more. The continuing demand for these visas should be viewed in the context of a robust U.S. economy and the lowest unemployment rate in 40 years. More specifically, the expanding economy, the tremendous growth in high-tech jobs throughout the entire business sector, combined with decreasing enrollment by U.S. students (BA, MA, and graduate students) in high tech fields (65,000 in 1983 v. 35,000 in 1997) has resulted in an increased demand for foreign professionals in many specialty occupations. Our current inability to satisfy this demand will harm both our economy and our ability to compete globally.

The H-1B visa was created in the 1950s to help the U.S. obtain and retain competitive superiority in many sectors of the economy, higher education, research and other fields. It still fulfills this purpose, allowing U.S. companies to remain competitive in an increasingly global marketplace. However, the original H-1B cap of 65,000 annually, and the current cap of 115,000, were set arbitrarily during debate first in 1990 and most recently last year. Both numbers were randomly chosen, and have little, if any, basis in the economy. Unfortunately, because this fiscal year's cap of 115,000 already has been reached for the last six months of this fiscal year, it will be impossible to bring into the country needed engineers, researchers, professors or computer and other professionals --in spite of shortages in these fields and the lowest levels of unemployment in decades. Worse, the cap could be reached next year within the first 2-3 months of fiscal 2000. Yet as the U.S. economy continues to grow and becomes increasingly global, the need for skilled professionals throughout all business sectors will continue increasing as well.

H-1B visas also today constitute one of the very few viable options for U.S. companies to recruit highly skilled professional employees for work in the United States. That is, given the lengthy process and extraordinary long delays in obtaining lawful permanent residency which result from meltdowns in both the Immigration and Naturalization Service (INS) and the Department of Labor (DOL), the only viable option for a U.S. company to legally hire a foreign national in a reasonable period of time has been to qualify professionals for temporary H-1B visas. You can be sure that U.S. companies would not seek foreign professionals if Americans were available. Their first choice and option has been and always will be the U.S. labor force. When this is impossible, because of shortages or the unavailability of an American with a specific skill, companies must seek qualified professionals from abroad.

H-1B PROFESSIONALS ARE USED THROUGHOUT THE U.S. ECONOMY TO CONTRIBUTE NEEDED SKILLS AND TALENT THAT OTHERWISE WOULD BE UNAVAILABLE IN THE UNITED STATES

H-1B visas are important to U.S. companies from all sectors of the economy. H-1B professionals often are key employees in companies and organizations engaged in new and exciting development, expansion, and discovery projects. I personally know of large and small businesses in the manufacturing, services, high-tech, pharmaceutical, biotechnology, and other industries, as well as colleges, universities, our school districts in Texas, non-profit organizations, institutions and governmental entities that utilize the H-1B visas.

This hearing gives us the opportunity to highlight U.S. employers that are using and benefiting from the talents and skills of H-1B workers. For example:

A government contractor in Colorado has hired several H-1B engineers with expertise in the decommissioning and decontaminating of former nuclear weapons facilities. Their expertise is being used in the clean up of several Department of Energy facilities that formerly were used in this nation's nuclear weapons complex.

A school in California devoted to teaching children with cerebral palsy has used the H-1B category to bring in several teachers from Hungary trained in a special technique (called "conductive therapy") that currently is unavailable in the United States. Parents of U.S. children helped by these teachers call their children's progress "miraculous."

Many of this country's leading pharmaceutical and biotechnology research companies and institutions hire H-1B scientists to work on projects ranging from cures for cancer and AIDS to developing safer and more effective drug delivery systems and surgical techniques.

H-1B physicians provide critical primary care medical services in some of this nation's most underserved areas, including inner cities and rural communities.

Manufacturing companies bring H-1B engineers to this country to introduce and train U.S. workers in technologies and manufacturing techniques currently not yet in use here, including the development of more environmentally-friendly thin-film coating techniques for locking products, and better catalytic converter systems for automobile exhaust, and many other important areas.

School districts in Texas not only use H-1B workers to fill large numbers of ongoing vacancies in the area of bilingual teachers, but also in the sciences, math and special education. For example, in Houston alone, the schools have 200 vacancies, only some of which they have been successful in filling with H-1B teachers.

The Conrad Hilton School of Restaurant Manager at The University of Houston needs an H-1B worker not only because of the individual's professional qualifications, but because he or she is uniquely equipped to assist them in opening one of their first, if not the first, overseas branch. Without their unique knowledge of the local conditions in China, it would be impossible for The University of Houston to conduct such operations from Houston abroad.

One H-1B visa holder sponsored by a local university, trains teachers in inner city schools to utilize the Internet in the classroom. He developed learning websites for teachers and students and works with La Escuela Rice, which teaches primarily from web based curriculum. Through his efforts, he, the students and teachers of Rice University have gone on to develop learning websites that have won awards ranging from Texas Monthly's "100 Best Websites in Texas" to a very prestigious award from the Smithsonian Institution.

Another scientist sponsored by a Houston based oil company has gone on to become one of the world's foremost scientists in the field of geostatistical modeling.

One small Houston business currently employs a Swiss physicist with a Ph.D. in H-1B status who is working on a NASA-funded project for a small mass spectrometer, which will have a variety of applications including fuel leak detection.

Of course, H-1B workers also are employed in the computer industry, as well as in many critical computer-related positions in non-high-tech companies. Many of these individuals work on important projects in the areas of medical databases, solving the infamous Year 22K problem for local and state governments, and on implementing business re-engineering software, thus allowing some of America's largest companies to continue to compete globally.

THE CONTINUED AVAILABILITY OF H-1B WORKERS IS ESSENTIAL TO THE GROWTH OF THE U.S. ECONOMY

Thousands of employers in all sectors of the economy utilize the H-1B category every day. While we have heard a great deal recently from high-tech companies, the examples previously cited demonstrate that U.S. employers use the H-1B category to hire foreign professionals with rare or unique skills, with the knowledge and/or experience that is needed by these employers to pursue new projects, expand into new markets, update their technology, and/or train their U.S. workers. There is no way that the government can outguess our free-market system, with the creativeness and genius of U.S. business. It comes up with thousands of different and better ways for it to compete locally and globally, to improve its services and products and occasionally in order to accomplish its business objectives it needs some special talent that just happens to be a foreign national. Of course, the H-1B category also is used to fill positions for which there is a shortage of available U.S. workers. However, whether or not such a shortage exists at any given time in any given industry, there always will be a need for employers to be able to bring into this country specially skilled individuals to fill specific niches in our economy. Furthermore, with the rapid growth of the U.S. economy and the increased expansion of U.S. companies into the global marketplace, the need for these individuals is likely to continue to increase in the near term.

In fact, H-1B professionals often already are here. They are graduates of our colleges and universities who are undergoing periods of "practical training" in their specialties in the U.S. If unable to get H-1B visas, these individuals would be required to go abroad, and would be unable to contribute their talents to U.S. companies. Instead, they would be hired by those companies' competitors outside of the U.S. Or, the U.S. companies that need their skills will move their operations or projects abroad, including the jobs that go with them, to where the individual can work.

I talk to both large and medium sized companies every day that have to make a decision about whether to develop a project in the U.S. if they can get the right mixture of both U.S. and foreign workers, or whether to focus the project abroad where more foreign workers are hired abroad and U.S. workers are sent to supplement the foreign workers. Either way, as a law firm, we win because we represent the companies whether or not they bring the foreign workers to the United States or they send the U.S. workers abroad. But from a U.S. economic point of view, the U.S. economy loses. Jobs are created abroad and the taxes are paid abroad and the technology is developed abroad.

Despite all of this country's efforts and preferences, especially the business communities' enhanced education and training initiatives, we will continue into the future to need the H-1B category to hire foreign professionals, given the global nature of our economy and our need to compete on at least a level playing field.

Far from taking jobs away from U.S. workers, H-1B professionals actually spur job creation in this country, allowing U.S. companies to expand into new areas, both geographically and in terms of new products and services, and fill critical positions upon which many other jobs depend that are filled by Americans. In 1988, before the current labor protections were added to the category, a Booz, Allen and Hamilton study commissioned by the INS concluded that the admission of H-1B nonimmigrants did not result "in any adverse impact on job availability for U.S. workers, nor does this result in depressing wage levels for these workers." Further, the only thorough Congressional study to date done on H-1B nonimmigrants in the U.S., was published by the General Accounting Office (GAO) in April 1992, although the research was completed prior to the labor protections that were added to the program in 1990. The GAO study, "Immigration and the Labor Market: Nonimmigrant Alien Workers in the United States", stated:

One of the major purposes of the nonimmigrant work-related visas is to enable U.S. businesses to compete in a global economy. Increasingly, U.S. business find themselves competing for international talent and for the 'best and brightest' around the world. The nonimmigrant visa can be a bridge or a barrier to successful international competition by U.S. companies, depending on how the nonimmigrant visa categories are interpreted and administered" (emphasis added).

As stated above, H-1B professionals are employed in many key positions in the United States. Because this year's cap of 115,000 has been reached well before the end of the fiscal year, not only will companies facing worker shortages be affected, it could cause serious harm to other U.S. employers, including this nation's education institutions and school districts. Companies are having to put important research projects on hold and delay product introductions and expansion plans. The inability to hire these foreign professionals could hamper employers' ability to keep a step ahead of foreign competition. And universities and school districts will be unable to fill needed positions.

CHALLENGES FOR THE H-1B PROGRAM

Opponents of the H-1B visa, along with those who assert that the cap could not have been reached as early as it was this fiscal year, allege that there is a great deal of fraud in the program. Fraud should not be tolerated. But allegations of widespread fraud are not backed up by fact. Where instances of fraud appear, they should be dealt with promptly. In fact, for example, the INS service centers and consulate in Chennai, India last year began jointly investigating the education and work experience claims on suspect applications submitted to the INS before the INS ruled on the petitions.

However, I believe that fraudulent applications are a very small portion of the total number of H-1B visas. Even the Chennai investigation dealt with only a fraction of all H-1B filings. Even when a consular official or an INS office says "fraud" on inspection, often there is simply a difference over an interpretation of what may be viewed as a highly technical issue. For example, not long ago, the American Consul in China denied a business visa to a professional on the grounds that the professional could not demonstrate an intent to return. After lengthy discussions, the company, having no other choice, qualified the professional for an H-1B visa in order to facilitate the individual's entry into the United States. By the time the H-1B visa petition was filed, almost a year had passed, the company had been completely frustrated and resorted to the use of the H-1 visa not only to secure the entry of the individual, but with the passage of time, it's needs had changed and a decision had been made by the company to transfer the function from China to the U.S., given the impossibility of obtaining a B-1 business visa. Yet that American Consulate later charged unsuccessfully that the H-1B petition change of intent on the part of the company that occurred over a 12-month period was "fraudulent."

Fraud and misrepresentation are real issues that must be addressed in order to maintain the integrity of the H-1B program. Yet this issue must be addressed in proportion to the scope of the problem. We must balance the interests of enforcement and services in order to achieve efficiency, effectiveness, and fairness. This balance can be achieved by a careful review of decisions, informing applicants of investigations, and focusing on the most likely abusers. Given limited resources, agencies should investigate only the most likely targets. Untargeted investigations waste resources. Referral for a full-fledged investigation should be undertaken only where there are multiple indicators of possible fraud in a case. This is especially true since most cases turn out to be bona fide. Ultimately, we must recognize that H-1B applicants are customers of our immigration system and should to be treated respectfully.

Thank you for the opportunity to present this testimony, and I am pleased to answer any questions you may have.

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