Recently, the Trump Administration has made a series of changes to the H-1B visa program. Below, we discuss a perspective on why these adjustments are being made and what their broader implications may be.
What is the H-1B Visa program?
The H-1B visa program allows foreign nationals with at least a bachelor’s degree or higher in specialty occupations to work in the United States in a field related to their area of expertise. Generally, H-1B visa holders work in STEM fields and academia, with most workers arriving from India and China. Each fiscal year, 85,000 visas are allotted to the program with 20,000 reserved for foreign workers who hold advanced degrees.
The Concerns
To understand the recent complaints surrounding the H-1B program, it’s important to look first at the underlying principle of temporary work and employment-based immigration to the United States.
A country will create pathways for the entry of foreign workers when they believe that these individuals will have a positive impact upon their entry. And the United States has certainly recognized and appreciated the contributions made by foreign workers in the past. Often, they complement the domestic labor force by bringing new or unique skills, raising GDP, and contributing new ideas and perspectives which can strengthen the country’s global standing. In recognition of their value, the United States has maintained various visa programs to facilitate their entry into the country, whether temporary or permanent.
However, the H-1B program has faced heightened scrutiny over the last year under the Trump Administration. The concern is not about the value of foreign talent itself, but rather whether the program is operating as it was originally intended – specifically, whether it is truly attracting foreign workers whose skills justify their entry into the US workforce.
Those concerned with the program argue that it has strayed from its original purpose. Instead of attracting specialized workers who supplement the US labor force, some accuse major companies of using the H-1B visa to employ minimally qualified foreign workers, even when there are domestic workers equally or more qualified for the same roles.
Arizona Senator Ruben Gallego (D) recently wrote a letter in which he accused the banking and technology sectors of laying off American workers and hiring H-1B workers in their place. In the letter, he firmly argues that the H-1B program is meant to supplement the American workforce, not replace it.
Why Does This Matter?
Unlike with Employment-Based (EB) immigration, most employers filing H-1B petitions are not required to prove a lack of able and willing qualified US workers for the role they are looking to fill. This helps facilitate the temporary entry of skilled foreign workers into the United States but leaves some people skeptical about the safeguards in place for American workers.If the H-1B program is truly meant to “supplement” the US workforce, as stated by Senator Gallego, then those who believe it is limiting employment opportunities for domestic workers will likely advocate for program “reform.”
Current H-1B Changes
In response to these concerns, the Trump Administration has made several changes to the H-1B program, especially in recent months.
Earlier this year, the Trump Administration implemented a $100,000 fee for certain H-1B applications. Later, USCIS announced that it will review the employment history of H-1B applicants, as well as screening their social media accounts before adjudicating their petition.
Most recently, USCIS announced a new weighted H-1B cap selection process, where applicants will be allocated a number of entries into the H-1B selection pool based on their OEWS wage level. This change is intended to increase the likelihood of selection for petitions made on behalf of higher-qualified applicants. The new rule will take effect for the upcoming H-1B cap registration, opening March 4 and ending on March 19.
Intended and Actual Consequences
Each reform targeting the H-1B program is intended to have an impact. From the Trump Administration’s perspective, the goal is to reduce the number of “minimally qualified” H-1B workers and increase job availability for American workers. Yet for many, these changes go beyond a necessary refinement of a visa program and instead send a direct message to the rest of the world that international workers are no longer welcome in the United States.
Combined with the multitude of immigration policy changes made over the last year, it would be unsurprising to see talented and skilled foreign nationals deterred from migrating- or immigrating –to the United States.