An immigration bill passed by Congress in October and signed into law by President Clinton is raising red flags in both labor and higher education circles. The legislation amends the Immigration and Naturalization Act to raise the cap on the number of highly skilled workers American companies can bring in from abroad under a type of three-year, renewable visa called H-1B. The number currently is capped at 115,000. The bill raises the cap to 195,000 by 2002, but in a new twist, foreign workers who are employed by nonprofits--mainly colleges and universities--are exempt from the cap.

H-1B visa workers for the most part hold degrees from the bachelor's level on up. More than half of these workers are employed in the information technology industry. Another large percentage have jobs in higher education that range from instructors to research assistants to engineers and technology specialists.

Congress initially capped the number of H-1B visas to ensure that American workers were not displaced from professional level jobs.

Proponents of the increased cap say there is a shortage of qualified, specialized workers stateside. But opponents, such as Federation of Public Employees/AFT member Jill Hynum, argue that the law provides an opening for local governments that want to contract out.

Hynum, a member of the Wisconsin Professional Employees Council (WPEC) and a project manager for the Client Assistance for Re-employment & Economic Support (CARES), which is the state's welfare information system for federal public assistance programs, became all too familiar with the law when the state contracted out the CARES function.

"In the early days of our project, there were a number of H-1B workers," she says, noting that "we don't want to bash foreign workers. For us, the issue is the overuse of contractors. The H-1B is the rallying point. They go to such great extents to [hire] other people rather than hire their own staff."

Norm Matloff, professor of computer science at the University of California at Davis, does not believe there is a shortage of IT talent in the United States. More precisely, he says, there is a shortage of talent at the wage level that companies want to pay.

"Supporters tell us H-1B can't be used for cheap labor because H-1B workers have to be paid the prevailing wage," wrote John Miano, chairman of the Programmers Guild, in an opinion piece published in USA Today this past September. "They neglect to mention that the employer determines the prevailing wage."

Hynum emphasizes that they are "at-will" employees with no collective bargaining rights, which is what makes them so attractive to private sector companies.

Higher education institutions accounted for about 3 percent of the total H-1B visas awarded in 1999, according to INS figures released in February 2000. The same report showed the median prospective annual wage for all H-1B workers was $45,000, and the median age was 28.

Last year, after the INS accidentally exceeded the H-1B cap, the high-tech industry started lobbying heavily to get the cap increased.

At the same time, the universities that hire scholars on H-1B visas told Congress that they were missing out because industry was hitting the cap by late spring before higher ed institutions even knew what their hiring needs might be for the next academic year.

The AFL-CIO and the AFT were opposed to raising the cap and especially to providing exemptions for any kind of worker, says Charlotte Fraas, AFT director of federal legislation. That the bill passed easily in both houses of Congress with broad bipartisan support shows the clout of the high-tech industry, she adds, noting that it didn't hurt that the companies seeking liberalization of the cap gave generously in this election year to candidates of both parties.

When President Clinton signed the legislation, he noted that it "contains a number of provisions that merit concern." Specifically, he said, parts of the new law "could weaken existing protections that ensure that the H-1B program does not undercut the wages and working conditions of U.S. workers and could also increase the vulnerability of H-1B workers to any unscrupulous employers using the program."

President Clinton has directed the INS, in consultation with the Departments of Labor and State, to monitor the impact of these provisions.

Meanwhile, public employees and higher education unions need to keep a closer eye on their employers' practices.