Developments in the H-1B Program, Including a Restrictive Senate Proposal

By David North on July 15, 2010

There have been two developments involving the H-1B nonimmigrant worker program recently; one is a major Senate proposal to deny H1-B workers to companies engaging in mass layoffs, and the other is a testing scandal related to a very small segment of the program.

The first is a proposed congressional action, the second, while set in concrete, deals only with physical therapists, and then indirectly.

Two senators, who made a significant dent on the H-1B program last year, Charles Grassley (R-IA) and Bernie Sanders (D-VT), have been joined by two others, Tom Harkin (D-IA) and Jon Tester (D-MT), in backing Sen. Amendment 4438 to the Small Business Lending Act.

According to UC-Davis Professor Norm Matloff, the expert on such things, the year's legislation is "considerably stronger than the provisions" of the earlier law (in the TARP bill) that only applied to layoffs of workers who were "similarly employed" as the H-1Bs. Grassley and Sanders had secured the TARP bill amendment.

The Small Business Lending Act, I assume, is a useful legislative vehicle as it will have many supporters in the business community. For the text of the amendment see SA 4438 here.

Meanwhile, across the river from Capitol Hill, in Alexandria, Va., there is the office of the Federation of State Boards of Physical Therapy, an entity usually far from immigration policy, but not currently.

The Federation has just announced that: "In response to pervasive, ongoing security breaches" [i.e., cheating] the organization was suspending its professional examinations for graduates of physical therapy schools in Egypt, India, Pakistan, and the Philippines.

Physical therapists from these countries have been coming to the U.S. for decades, and passing the FSBPT tests is part of the process leading to H-1B visas. With the test unavailable until the Federation can devise a new, less vulnerable process, the flow of these therapists into the H-1B program will presumably be curtailed.

Most H-1Bs are engineers or software designers, and they will not be affected by the scandal, their credentials not resting on a given examination. DHS in recent years has not been publishing the number of physical therapists getting H-1B visas, but they are a subset of those in the health field, and these, in turn, accounted for less than 10 percent of the visas in both FYs 2008 and 2009, according to a DHS report "Characteristics of H-1B Specialty Occupation Workers."

The testing of physical therapists is not a new problem. According to a Federation spokesman, the organization used to provide tests in several places outside the U.S., but security problems caused them, several years, ago, to confine the testing to locations in the U.S. This means that a would-be H-1B therapist from abroad would need to come to America to have the test.

The test is done in offices in the 50 states, run by a Federation contractor. An applicant makes an appointment to take the test at a convenient time; the applicant is then placed in a small office with a computer and is given a set time to complete the examination.

The problem is a dual one. First, either the same test is given to everyone, or there are a limited number of questions from which a selection is made for each applicant. An applicant with a good memory can then pass on the content if not the actual text of the questions to potential test-takers.

Again, reading between the lines, there must be networks of physical therapists who pass this information around, at least to their own countrymen. (Testing organizations are loath to discuss these cheating techniques, for obvious reasons.)

Apparently, these networks are particularly active among those studying physical therapy in the countries listed earlier.

When I last looked into the security of tests conducted by, for example, the College Boards, I found that the tests were all given at the same time, nationwide. Further, there were several different versions of the test, so that if I were taking version A, the people on either side of me in the room would be doing versions B and C. Even then, the managers of that system had to worry about people with excellent memories leaving the East Coast test site and calling chums (or customers) on the West Coast with the questions that they could recall.

A comment: admitting that a significant system has been corrupted is difficult for any organization, and the Federation should be given credit for doing so, and taking this action.

On the other hand, it is probably a lot easier, politically, for a domestic, non-governmental organization to ban applicants from Egypt, India, Pakistan, and the Philippines, for example, than it would be for a federal agency to do the same thing.