Why 2K? President Signs Bill to Increase H-1B Filing Fees

By Murali Bashyam, Esq.

The United States Senate, in a largely bi-partisan vote, passed a bill on August 5, 2010 which, among other things, would impose an additional $2000 filing fee for companies that file H-1B applications on behalf of foreign professional workers.  This filing fee is in addition to the normal H-1B filing fee of $2320 or $1570, depending on the size of the company's workforce.

If you run a company and hire H-1B professional workers, is it time to panic? Yes.

When this article was originally written last week, the Senate bill was not law.  It still had to be reconciled with the House bill (HR 6080), which passed on August 10, 2010.   However, it quickly did so and the bill was signed by President Obama last Friday.  The key question is why the Senate, House and President are proposing this fee increase on employers in a weak economy?

Illegal immigration is a hot topic right now.  In fact, it has been for years.  You cannot turn on the television without hearing a sound-bite on immigration from politicians who really do not understand the topic.  For example, Senator Chuck Schumer (D), a sponsor of the Senate bill, says the following:

"There is a part of H-1B that is abused, and it is by companies that are not American companies or even companies that are making something. Rather, they are companies that take foreign folks, bring them here, and then they stay here for a few years, learn their expertise, and go back. We think we should increase the fees when they do that," the Senator said.

In summary, Sen. Schumer is basically saying:

• There is abuse in the H-1B program, but none by American companies or companies that 'make something.'
  
• Companies hire foreign workers and the workers learn their 'expertise' in the U.S.
  
• Foreign workers in the H-1B program stay a few years and then go back to their home countries.
  

Other than acknowledging that there is some abuse in the H-1B program, every other point or assumption made by Sen. Schumer is completely false.

• Only an 'American' company can hire an H-1B worker! The H-1B program is strictly for American employers to hire foreign workers on a temporary basis. And even though a company may not 'make something', it does not mean they are irrelevant or insignificant.
  
• Foreign workers do not come to the U.S. to learn their expertise. They must have it before they can be issued H-1B status!  In fact, they must be offered a professional position -- one that requires at least a Bachelor's degree (or equivalent).  And they must prove, with an evaluation by a U.S. credentials agency, that they have the equivalent of a US Bachelor's degree specifically related to the position offered.  Most of these workers have many years of professional experience as well before they come to the U.S.

Foreign workers come to the U.S., earn money and contribute to our economy through consumption and taxation.  Many apply for permanent residency so they can live in the U.S. , but many also  return home for family reasons (or because the U.S. residency process takes far too long).  Studies have established that many of the immigrant workers who remain in the U.S. are entrepreneurs who start businesses and employ U.S. workers.  Sen. Schumer fails to acknowledge the contributions foreign professional workers make to the United States economy and culture.

We believe that most people in the U.S. are pro-immigrant.  In fact, polls have proven as much.  But they are for legal immigration and understandably against illegal immigration.   By increasing H-1B filing fees on U.S. employers, the government goal is to raise more revenue to hire 1500 additional border patrol agents to patrol our southern border.  In essence, our government wants to penalize companies that hire legal foreign workers under the H-1B program to help prevent illegal immigration.  Why should illegal immigration negatively impact a U.S. company that legally hires a foreign professional worker?  It should not. These two issues are --  and should be -- separate.

Penalizing law-abiding employers in a down economy is not good for our country.  As Mohandas Pai, Director of Human Resources for Infosys, said in reaction to the Senate bill, "it sends a very negative message from America that highly skilled people are not welcome, the markets are closing up."  Instead of a being what is the backbone of this great country, immigration now seems to be an unnecessarily negative and divisive issue.

Let's hope for real, positive change in our immigration policies, not just talk of it.

To learn more about Bashyam Spiro LLP, please visit www.bashyamspiro.com.