President Donald J. Trump recently announced plans to issue an executive order which would change the way the H-1B visa is used by U.S. employers. The “specialty occupation” visa is essentially used by U.S. employers to hire foreign nationals to occupy professional positions that generally require a minimum of a bachelor’s degree or the equivalent in work experience. Why are changes needed and what changes can be expected, and what effects will this have on U.S. employers?
In theory, the H-1B category is crucial to the U.S. because there are very few temporary (“non-immigrant”) visas available for professional-level foreign nationals in general.
What is also true is that H-1B enforcement needs to be changed because the visa is abused by some U.S. employers, who undercut the market by paying foreign nationals less than the market bears to widen their profit margin, and this can have the collateral effect of making higher-paid U.S. workers expendable. This has been well-documented and the flaws in the system are exposed.
How is this done by employers?
(1) Employers sponsor candidates under categories that meet minimum H-1b requirements but actually employ the candidates in other positions which should require a higher salary.
(2) H-1B petitions list the jobs as part-time, which is permitted, which allows the employers to pay much lower salaries, while requiring the workers to work full-time and overtime as well, with no additional compensation.
(3) Employers list the offered positions at lower experience levels in order to pay lower salaries more experienced U.S. workers, even when foreign workers are more experienced. This leads to displacement of U.S. workers by lower-paid foreign workers.
(4) Because there are always more applications filed then there are spots (85,000 total, 25,000 of which are for U.S. Masters’ degree holders), bigger employers often file multiple petitions for the same candidates to help their odds, as well as flooding the pool with thousands of applications, which minimizes chances for smaller companies to hire employees.
So what does this all mean for the future of H-1B?
I believe that the H-1B program could be changed into one closely resembling the one for employment-based green cards, involving a preliminary labor certification process, documenting that the positions were advertised and recruiting was done to fill the positions with qualified U.S. citizens and green card holders.
The reality is that is highly unlikely that the changes will be implemented in time for 2017, but there will be a directive from up on high to increase the level of scrutiny to look for red flags of the above indiscretions by employers. I also anticipate there being a sharp rise in “site checks” and perhaps even inquiries in collaboration with Department of Labor as to wage payments being in line with prevailing wage. Employers who commit repeated infractions will be subject not only to fines but to being red-flagged and perhaps even blacklisted.
No matter what your opinions, the bottom line is that for the U.S. employers to compete globally, the U.S. needs to continue to employ the best and brightest minds, and those individuals should be paid what the market bears, thus not making U.S. workers indispensable. H-1B can be a win-win for all involved if it is not abused by U.S. employers. It cannot be shut down completely. We can never lose sight that this great country was built in equal parts by hardworking foreign laborers, as well as the world’s most brilliant minds.
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