H-1B Cap May Rise

President-elect Barack Obama's pick to lead the U.S. Department of Homeland Security will face a nomination hearing before a Senate committee whose chairman, Sen. Joseph Lieberman, has been both a critic and a defender of the H-1B program. The Connecticut senator's most recent action on the program came in April, when he backed legislation seeking a major increase in the number of H-1B visas that are issued.

Arizona Gov. Janet Napolitano, who was officially nominated Monday to head DHS, is a strong advocate for increasing the H-1B cap. She is expected to appear in late January or early February before the Senate Committee on Homeland Security and Governmental Affairs, which Lieberman heads. The ranking GOP member is Sen. Susan Collins of Maine, who last year pushed for reform of the H-1B program.

The focus of the hearing will undoubtedly be on keeping the U.S. safe from terrorists, and topics of higher priority may include the recent terrorist attack in India. Also high on the list is a report, due for release Wednesday, by the congressionally appointed Commission on the Prevention of WMD Proliferation and Terrorism warning that a biological attack is likely by 2013.

Lieberman, an independent, supports increasing the H-1B cap. On April 10, just days after the H-1B visa cap of 85,000 was reached, which includes 20,000 set aside for advance degree graduates, Lieberman co-sponsored the Global Competitiveness Act of 2008, which would have allowed the U.S. to "recapture" 150,000 unused H-1B visas from prior years and redistribute them.

"We must address the H-1B visa crisis to ensure that America remains the world leader in innovation," Lieberman said in a statement at the time.

In 2007, Collins introduced the H-1B Visa Fraud Prevention Act, to increase the ability of the U.S. Department of Labor to investigate H-1B fraud claims and set limits on the ability of employers to transfer the visas to other companies.

The concerns raised by Collins were underscored in a recent report by the U.S. Citizenship and Immigration Service, which is part of DHS. The USCIS found widespread fraud, including the existence of shell companies, in the H-1B program. Whether Collins will raise this issue at the hearing is uncertain. Collins was not immediately available for comment.

But in October, after the USCIS report was released, Collins said there "is a serious problem with outright fraud in the H-1B visa program." She warned further that "the approval of these fraudulent petitions poses a real risk to our national security, because if these foreign workers don't end up working for their identified employer, then we may never know why they actually came to the United States or their current whereabouts."

Lieberman seemed more critical of the H-1B visa program in 2004 than he did last April. In 2004, Lieberman issued two papers on offshore outsourcing. In one, Data Dearth in Offshore Outsourcing: Policymaking Requires Facts, the senator complained of a lack of data on H-1B visas, which Napolitano, as head of the agency that oversees immigration, could address. One question that Lieberman raised in the report was this: What is the role of H-1B and L-1 temporary visa programs on offshore operations by U.S. and foreign companies?

The second paper, Offshore Outsourcing and America's Competitive Edge: Losing Out in the High Technology R&D and Services Sectors, cited the H-1B visa as well as the L-1 visa, which is used by multinational companies to transfer employees from a foreign corporation to a U.S. branch, urged reform of these programs and said, "it appears that offshoring is being encouraged by some abuses of these well intentioned programs." Lieberman's office was not immediately available for comment.

A hearing date has not been announced. The last time the committee held a hearing for the DHS post, confirming Secretary Michael Chertoff, was in early February 2005.

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