Contention Over H-1B Visas is Hot Again

Schoolchildren in the U.S. have long been charged with learning "The New Colossus," the poem written by Emma Lazarus embodying the Statue of Liberty's silent but constant welcome to the world's tired and poor.

In practice, however, American immigration policy has been far more welcoming of those who are not so tired, nor poor; the nation has always preferred to welcome those with high levels of skill and education. Such welcomes have not been a constant, however, and under the Trump administration, the admission of foreigners into the country—whether they are Central American asylum seekers or Indian computer programmers—is becoming ever more contentious.

While President Trump's border wall may be garnering headlines in the popular imagination, recent actions around the H-1B visa program for jobs that require specialized knowledge, which admits 85,000 foreign workers annually for up to six years, are becoming a flash point for the immigration debate in the technical community. Some advocate for a more welcoming H-1B process; others argue that the H-1B, which was introduced in 1990, is being used for purposes for which it was never intended, while enabling windfall profits for outsourcing companies.

"I would like to see an H-1B program and immigration structure overall that can breathe, that can expand and contract based on outside indicators like the GDP (Gross Domestic Product) and unemployment rate, to meet specific needs in specific sectors," said Sandra Feist, a Minneapolis, MN-based immigration attorney with a nationwide practice representing H-1B petitioners. "The problem with the H-1B is the numbers are static. The numbers created this lottery situation and because there's a lottery, companies will try to play the odds; they file x percent more H-1B applications than they need."

Manish Mohan, chief global talent officer for Tampa, FL-based technology staffing vendor KForce, concurred with Feist's sentiments. "The number of foreign workers admitted should be tied to concrete measures that are not debatable, that are scientific and rational," Mohan said. "We should tie it to something that is tangible."

The U.S. Department of Homeland Security announced last year it was pursuing changes in registration procedures and H-1B lottery selection order to streamline the process, and "to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program."

Feist, however, said the program is "in severe disarray and under siege and less predictable in terms of timing than it ever has been."

Empirical and anecdotal dysfunction

Unfortunately, Mohan said, rationality does not seem to be the current driving force behind the winds of policy gusting around the foreign technology workforce. "I think the one thing that really hurt foreign workers from coming into this country was the Trump rhetoric," Mohan said. "One of the things I noticed was that suddenly some of my friends who are highly qualified people back in India started looking at Europe and Canada as alternatives, and that has never been the case during my time."

Within her own practice, Feist said she, too, has noticed what appears to be arbitrary scrutiny from the Trump administration that is causing undue delay and frustration among her clients. For example, she said, in the first year of the Trump administration, the government "created a template where anybody who was an entry-level Wage Level 1, say an engineer who just graduated and is brand new—for every single person in that category, they sent us a tortured template that said 'we don't believe someone who is entry-flevel can possibly have a job that requires a bachelor's degree.' They did that for every single occupation: IT people, engineers, doctors, architects, no matter what they did, they argued it didn't require a degree, which was very illogical and also contrary to the intent of Congress when it explicitly states H-1B's can be sponsored for all wage levels."

In 2018, the second year in which the Trump administration scrutinized the visa process, Feist said the granular questioning concerned not wage levels, but whether or not a given applicant's job required a "specific" bachelor's degree. "So what I expect this year is they will create another template that was dreamed up in (Trump senior policy advisor) Stephen Miller's brain and he will come up with a new way to create extra delays, uncertainty, anxiety, inconvenience, and expense for employers who sponsor H-1B workers."

Beyond Mohan and Feist's own experiences, empirical data shows higher levels of scrutiny, and perhaps an incipient "brain drain" of those who are opting to go elsewhere to study and begin careers. For example, according to National Foundation for American Policy analysis of U.S. Citizenship and Immigration Services (USCIS) data, denials for initial H-1B applications rose from 6% in fiscal year 2015 to 32% in the first quarter of FY2019. Additionally, USCIS adjudicators denied 18% of H-1B petitions for "continuing" employment, compared to denying only 3% of H-1B petitions for continuing employment in FY 2015.

In addition, according to a recent report published by the Orrin G. Hatch Foundation and policy advocacy group FWD.US, the number of student visas issued by the U.S. in FY18 was down nearly 7% from the previous year, while international student enrollment in Canada grew 20% over the same period.

"I think they—the administration—are fighting a war of attrition," Feist said. "They are hoping employers will stop bothering and they are hoping foreign nationals who came here as a place for opportunities will go elsewhere. My hope is that a new administration will take a new approach. I think if we see eight full years of this, a decade from now our immigration levels will, by design, have dropped significantly.

"The process is very expensive and complicated, and no employer in their right mind would sponsor an H-1B worker if they truly had this unlimited amount of qualified, interested, and talented U.S. workers out there. But the companies I work with cannot find the people they need. I think employers will keep with it, at least in the short term, but the long-term effects could be disastrous for our economy."

Lack of intent and direction

One of the fundamental frustrations with the current direction of H-1B oversight is that it mirrors what the Hatch/FWD report calls inadequate modernizing of immigration policy. After the collapse of the last concerted effort by Congress to enact comprehensive immigration reform in 2013-14, most of the issues surrounding the implementation of H-1B policy, for instance, have revolved around the issuance (or repeal) of presidential executive orders rather than formal legislation; the disputed spousal H-4 work authorization policy signed by Barack Obama in 2015, and now threatened by President Trump, is an example.

Under the Obama order, spouses of H-1B holders may also work legally in the U.S. The Trump administration has proposed eliminating that authorization. That proposal has garnered negative attention from several policy think tanks: Jacqueline Varas, director of immigration and trade policy at the non-profit American Action Forum, said in a research brief that those currently working on H-4 authorizations contribute to the U.S. economy to the tune of about $13 billion in earnings a year. If every H-4 spouse were to receive such authorization, they could add $41 billion to the economy.

Such piecemeal back-and-forth changes from administration to administration frustrate many. For example, IEEE-USA, the unit of the Institute of Electrical and Electronics Engineers' organization formed to support the career and public policy interests of the IEEE's U.S. members, strongly supports increasing the number of workers admitted to the country through the green card pre-citizenship process, rather than wholesale H-1B issuance.

"There is a role for the H-1B in the economy and it is exactly what the H-1B says it is: a temporary work program," said Russ Harrison, IEEE-USA's director of government relations. "It can play a role for temporary jobs, or where there is a temporary shortage of workers for a skilled position. Those are very tightly worded constraints."

Instead, he said, the H-1B's 85,000-person cap is used as an ongoing substitute for well-thought-out policy that would lead more workers to permanent resident status sooner. Unfortunately, Harrison also said, the current polarization in Congress means a more permanent legislative approach is highly unlikely.

"We find broad and deep support for the idea of skilled workers, especially international graduate students, to become Americans," Harrison said. "There is very little opposition to that in theory on Capitol Hill. The problem is getting a bill passed, and there are two things holding us up. The lesser of the two is that nothing is moving in Congress, and therefore, anytime anybody gets a bill that starts to get traction, everybody else tries to attach their stuff to it, and nothing moves.

"The second problem is where the green cards come from. Democrats say we should create new visas. Republicans say they don't want to create new visas; instead, they want to take visas from someplace else and re-purpose them. A, Democrats don't want to do that, and b, then whoever is using the visa category you're pulling from is also not happy, and it's hard to find a middle ground."

Trade-offs in acculturating

According to the IEEE-USA's institutional perspective, such inability to create a long-term solution will enable more technology companies and their employment brokers to continue to game the market by paying their H-1B workers lower wages than they would to comparable native-born employees, while enabling the brokers to skim the middleman's profit off the top.

KForce's Mohan, however, contends the market is working as it should, and that market conditions, rather than ideology, should dictate employment levels and compensation.

"The problem with a green card is, once it's done it can not be undone," Mohan said. "It's pretty much given for a lifetime. What H-1B does is you can 'try it before you buy it', so to speak. These guys can come work in the country for six years and then if the firm likes them, it can sponsor the green card. So from a business perspective, the protracted process actually helps the businesses."

Raising the prevailing wage of new foreign workers in the U.S., Mohan said, in actuality reduces the domestic technology industry's global competitiveness, given the cheaper wages workers receive in India and China, for example. Moreover, he said, lower short-term wages can be offset by what he called the long-term attractiveness of working in the most developed market in the world (he himself came to the U.S. on an H-1B visa in the early 1990s).

"And I was treated with respect," he said. "Was I more qualified and getting paid slightly less? Yes, it's true. But I was very strong technically, but very inept socially and businesswise. That's the part the government does not understand; American businesses are so advanced, that when these foreign workers come in, we have to teach them the American way of doing business, which is highly mature compared to their countries. When they get paid less, there's a reason behind it."

Feist said she has noticed that many of this cohort Mohan describes—those in the middle of the long process of becoming acculturated to the American way of life—are those experiencing the most aggravation.

"A lot of people who are suffering right now are people who have been here a very long time," she said. "They are people who came here for an education well before 2016. Those people are committed to the idea of the American Dream. They are tied to employment opportunities they had as of 2016 and a lot are mid-green-card progress. For the most part, they and their employers are already committed.

"But one company I worked with said they would never do an H-1B again. Another client had the case from hell, and has been fighting for one since 2017, and says 'this is the end. If we don't get approval, he is moving to Canada.' He has a master's degree. It would make me sad if he moved."

Gregory Goth is an Oakville, CT-based writer who specializes in science and technology.