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In October, 2000, Congress increased the annual allotment of H-1B visas for foreign, high-tech workers to 195,000 a year for three years beginning in FY 2001. The Senate passed the increase by a vote of 96-1 and the House passed it by voice vote.

These bloated visa numbers were in effect through FY 2003. After October 1, 2003 the annual allotment of H-1B visas returned to 65,000.

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H1-B expansion of 2004

In the fall of 2004, Congress included in the Omnibus Appropriations Act for Fiscal Year 2005 a permanent increase of 20,000 in annual admissions of H-1B visa holders by exempting from the annual H-1B cap foreign graduates of U.S. institutions with masters or PhD degrees.

However, according to a recent U.S. Citizenship and Immigration Services (USCIS) press release about the implementation of the new H-1B provisions, it appears that USCIS Director Aguirre has decided not to limit the additional 20,000 H-1B visas to people with an advanced degree from a U.S. university. USCIS says that it has already issued 20,000 H-1B visas to workers with advanced degrees from U.S. universities in FY 2005, so the restriction does not have to be applied to these 20,000 extra visas. There is a significant problem with this (in addition to the fact that the administration has chosen to ignore both the letter and the spirit of the law, despite that it is constitutionally bound to ensure that "the laws be faithfully executed"). The provision in the Omnibus spending law says specifically that the H-1B increase took effect "90 days after enactment" or March 8. Had Congress intended the interpretation USCIC has announced, it would have mandated that the increase "take effect as if enacted on October 1, 2004."

No Legal Authority

USCIS does not have the legal authority to effectively amend a law to make it apply retroactively. Neither does USCIS have the legal authority to effectively delete parts of a law by ignoring those parts that are inconvenient or with which it disagrees. Yet, Aguirre and his agency have done just that by issuing 13,000 more H-1B visas in FY 2005 than the law allows. Rather than limiting issuances to the 65,000 H-1B visas Congress authorized by law, USCIS issued 78,000 visas not including those that are exempt from the cap or the additional 20,000 authorized in the omnibus.

Since USCIS is playing fast and loose with the law anyway, one might hope that Aguirre would order his agency to correct its error by subtracting 13,000 from the 20,000 visas that are newly available. However, it appears that Aguirre has every intention of issuing the full 20,000 additional H-1B visas.

The legal cap on H-1B visas dropped from 195,000 back to its original level of 65,000 on October 1, 2003. Almost immediately, certain Members of Congress began looking for ways to increase this level, despite the fact that the number of available jobs is decreasing and unemployment among American workers is increasing. The Wall Street Journal announced the same month, for example, that Senator Hatch was working with employers like INTEL and the Indian Government to increase the H-1B cap.

American Workers Hurt

Some 14 million Americans and legal workers currently cannot find full-time jobs in the United States. More than 100,000 American programmers are unemployed. When those who are underemployed or working in other jobs because they cannot find programming jobs, the total grows to about half a million. At the same time, more than 450,000 H-1B workers are employed as programmers in the United States. U.S. employers are cutting jobs at the same time they are importing H-1B workers to fill the remaining jobs.

Caps Ignored

In FY 2003, the Bureau of Citizenship and Immigration Services approved 217,340 H-1B petitions, despite the fact that the legal cap on H-1B visas was 195,000. Amazingly, only 78,000 of the more than 200,000 approved H-1B petitions was counted toward the legal cap. The rest were approved for employment in "exempt" institutions, including universities and nonprofit organizations, which were permitted to apply for unlimited numbers of H-1B workers.

On July 28, 2006, the Department of Homeland Security July 28 announced it has stopped accepting fiscal year 2007 H-1B petitions for foreign workers who have earned advanced degrees from U.S. universities, since DHS already has received enough applications to fill the 20,000 annual cap.