New legislation introduced by Rep. Lamar Smith (R-Tex.) to increase the availability of H-1B high tech guest workers, while containing some positive provisions, is ultimately too vague and expansive to ensure that the jobs and wages of American workers are adequately protected.

The important improvements of the bill, however are outweighed by the open-ended allocation of H-1B visas that it would provide. H.R. 4227 sets no limits on the number of high tech guest workers who can be brought into the American labor force.

Unlike the Senate version of the H-1B legislation, the Smith bill does establish certain principles of protection for American workers and is, therefore, the vastly superior of the several options before Congress. With or without an increase in the H-1B program, concrete protections against substituting foreign guest workers for Americans, and fraudulent claims of worker shortages, should be enacted.

H.R. 4227, known as the Technology Worker Temporary Relief Act, includes some measures that attempt to provide protection to Americans who work in the high tech industry. Concerning employers who use H-1B visas to import workers that the program was not intended to benefit, the bill's anti-fraud provisions are specific and are a marked improvement over the current system.

The provisions that are intended to safeguard the jobs and wages of American workers, while conceptually positive, lack the specificity of the anti-fraud aspects of the legislation, and provide too many opportunities to circumvent the spirit of the legislation. The clear intent of the bill, to protect American workers, needs to be reinforced with clearer language.

As amended in the House Judiciary Committee, the Smith bill requires companies that employ H-1B workers to have increased the total and average compensation to American workers over the previous year. The lack of a specific targets, however, is an enormous and obvious loophole that opens the door for companies that wish to circumvent the spirit of these provisions. These employers will be free to make token increases in their compensation of American workers, while using the H-1B program to fill most of their labor needs and limit their labor costs.

Moreover, H.R. 4227 does not address the fundamental Achilles' Heel of the current guest worker program. Under this bill, the program would still rest on the self-serving attestation of employers that the foreign workers they want are really necessary. The primary reason there is a "shortage" of H-1B visas is that many nonessential workers have been hired under the program based solely on the attestation of employers who claim that they cannot find qualified American workers. Until this loophole is closed, increasing the number of H-1B visas will only increase the opportunities for abuse.

In the area of overt fraud by employers, H.R. 4227 is far more specific and, therefore, offers tangible improvements. These protections should be implemented, even without an increase in the total number of visas. The specific anti-fraud measures include taking steps to close down the "visa mills" by forcing petitioners to prove that they are legitimate businesses and that the wages being paid to H-1B workers are above a level ($40,000) that would be expected for professional workers.

H.R. 4227, while containing some much needed improvements in the policing of the H-1B program, still falls far short of balancing the legitimate needs of the high tech industry, with the legitimate concerns of American workers who want to share in the benefits of this booming sector of our economy. There are provisions of H.R. 4227 that should be adopted irrespective of any congressional action to increase the allotment of H-1B visas. However, the bill contains so many glaring loopholes and weaknesses that the harm it will cause will far outweigh any limited protections it seeks to provide.