The Program That Helped Make Tech Great In America Is In Serious Trouble

Editor’s note: Amanda Gillespie is Manager of Extraordinary Ability Cases at Samuel Christensen Law Firm. She’s been hunting down wild H-1Bs for people of extraordinary ability since 2003.

It sounds simple: Americans want jobs, but there simply are not enough to go around. So when someone in the unemployment line hears of a foreigner getting work at an American company, it can send a mixed message.

But people aren’t just flooding over our borders, walking into interviews, and being handed a job over their American competition. The true path to foreign employment is so complicated and so weighed down by paperwork and bureaucracy, it’s a wonder anyone bothers to try at all.

The way in for many is through the H-1B visa program, a temporary residency classification for persons with specialized knowledge that may be hard to come by within the U.S. workforce. The H-1B has long been contentious, but with President Trump’s focus on keeping jobs in the United States, it’s become a battleground issue. At stake is the future of STEM (science, technology, engineering, and mathematics) jobs in America and a program that may actually help create more U.S. jobs in the long run.

What’s the H-1B Visa?

There is a whole alphabet of U.S. visas out there, with different letters connoting different requirements and restrictions. Of employment visas, the H-1B is the most issued. It stands as a three-year employment visa that requires a full-time job offer from a U.S. company and for the potential employee to possess “specialized knowledge” in STEM areas, including but not limited to: biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts.

Currently, U.S. Citizenship and Immigration Services issues just over 180,000 a year, with demand far outpacing supply. Of the 180,000 issued, 65,000 are included in what the USCIS calls its “cap,” which means that the applicant has a bachelor’s degree, a major U.S. company is offering a job, and the applicant possesses a specialized ability in their field. Most importantly, the salary must be commensurate with what American applicants would make.

But there are numerous exemptions to the H-1B cap. For example, applicants being sponsored by government research centers, non-profit research facilities, or certified institutions of higher learning are all exempt from this cap. We also have trade deals with certain countries that allow for exemptions. Chile, for example, is reserved about 1,400 H-1B visas as part of our NAFTA deal.

Why is President Trump up in arms about the visa?

The H-1B has gotten a great deal of attention lately as a nonimmigrant visa classification up for major revision.

One bill, by Representative Zoe Lofgren, D, Calif., would forgo the visa lottery and, instead, give preference to employers offering high salaries, with first preference going to salaries that are 200 percent or more of the prevailing wage. Another proposed change to the system, in a bill reintroduced by U.S. Senators Chuck Grassley, R, Iowa, and Dick Durbin, D, Ill., would give the first choice to persons educated in the United States. And those aren’t even the only two bills out there in the visa universe right now.

And as the April 1 deadline for H-1B visa applications approaches, Trump’s campaign promise to “end forever the H-1B as a cheap labor program” is coming into sharp focus. In 2015, the big five tech companies—Google, Microsoft, Apple, Facebook and Amazon—had 8,069 H-1B applications. On average, more than 80 percent of those applications were approved. This is the way the visa is supposed to be used—attracting tech talent from far-flung places, allowing companies to prune top, specialized people of extraordinary ability. Unfortunately, the visa’s misuses are concentrated. To combat the abuse, Yahoo reports that President Trump wants to raise the overall average H-1B salary by 40 percent to over the $100,000 mark, forcing companies to think twice, it seems, about hurting the American worker in the pursuit of profit. These are sentiments that are in line with his campaign rhetoric, regardless of the fact that Trump’s use of foreign workers at Mar-a-Lago is rampant under the H-2B.

But even that won’t stop the abuse of the law. To do that, he’d have to close a loophole allowing companies to disregard rules built into the Immigration Act of 1990 (which created the H-1B) and its 1998 amendment, against companies replacing American workers at a lower wage as long as they pay that worker at least $60,000 a year, a wage far lower than the average for information technology workers in the United States. For example, at Southern California Edison, which the Department of Labor cleared of wrongdoing when they were caught using the H-1B to their advantage, the average wage of an IT specialist was $110,000 a year.

Is the H-1B actually as bad for US workers as Trump says?

Like any system that offers a benefit, there are abusers. Some major U.S. companies were caught asking their U.S. employees to train their foreign replacements who, on the H-1B visa, performed the same job for lower wages.These companies use large scale outsourcers from places such as India to help skirt protections the H-1B has in place to prevent just such a scenario.

If you’ve seen the now infamous 60 Minutes segment, where outraged IT workers at the University of California, San Francisco protested and filed complaints with the Department of Labor over their treatment, then you know this issue runs hot. The former congressman who created the law is a man by the name of Bruce Morrison, D. Conn. He told CBS the law had been “hijacked” and was being used as a “highway to bring people from abroad and replace Americans,” he said. The data is vast, but a recent study by the National Academies of Sciences, Engineering, and Medicine stated definitively that foreign nationals are not stealing American jobs and lowering their wages, according to The New York Times.

One of the problems are “outsourcers,” large companies that hire lower-wrung IT workers and game the USCIS system by flooding the lottery pool of applications with their own people. Indian firms such as Infosys and Tata Consultancy Services are typically the ones doing this sourcing, working with American companies like Disney to use the 1998 loophole to replace American workers with foreign ones at a lower cost.

[quote position="right" is_quote="true"]If used correctly, the H-1B is a boon for both the American worker and the foreign-born one.[/quote]

Often, the foreign worker is caught in the middle, used as a pawn in an immigration game that benefits few parties when bad actors get involved. After their three years is up, workers are often denied the ability to stay in the United States. Jack Little runs a company in Connecticut called Mathworks. He told Boston’s WBUR that outsourcers are eating up visas. “It’s a source of frustration, because the (visa program) is being used in a way that’s opposite to how high-tech companies want to use it," he claimed.

If used correctly, the H-1B is a boon for both the American worker and the foreign-born one. Representative Lofgren’s bill, the “High-Skilled Integrity and Fairness Act,” would raise that $60,000 mark to $130,000, theoretically removing a company’s incentive to replace a U.S. specialist with one on the H-1B. This could move outsourcers to pay their labor more and encourage American companies to hold onto their higher-paid American workers.

Does the US need foreign-born skilled labor?

According to the Bureau of Labor Statistics, the United States is not producing enough American-born graduates to fill jobs needed in STEM fields. Other shorter-term visas like the TN (a visa for NAFTA professional workers from Canada and Mexico that lasts just 12 months) and the J-1 (a visa for work-based or study-based exchange programs that last only 18 months) enable the employee to begin work, but these finite durations may not inspire the kind of dedication that leads to real gains on long-term projects.

At issue is how to understand the statistics. Put simply, the American market for STEM workers varies. Stating that there were more STEM jobs than STEM degree holders misses the point, as a report from the Center for Immigration Studies has done. The BLS finds that markets for someone, let’s say, with a master’s degree in mechanical engineering is distinctly different from someone who has a Ph.D. in biology. While the market for academic degree holders may be oversaturated, the market for skilled computer programmers is not.

Which is what makes the H-1B important. Skilled jobs will eventually be pushed overseas if not allowed to be filled by qualified workers. The impact of such a relocation of wealth could be disastrous to the American economy. Microsoft did just that in 2008 when they opened up an office in Vancouver, Canada, for 150 workers they couldn’t get visas for the in the United States.

[quote position="full" is_quote="true"]The H-1B remains the most useful visa category to get and to keep specialized workers long enough to settle in and invest sustained attention and effort into their work environment.[/quote]

As H-1B applicants get hired for jobs as software engineers, computer systems analysts, and systems software engineers, it becomes clear there is no uniform crisis. Rather, where you look and what industry you’re looking at is what matters most. And that’s just technology. The United States is still spiraling toward a massive nursing shortage as baby boomers get older. Though the H-1B does not normally cover nurses, drastic changes need to be made in order to cope with the coming situation.

The H-1B remains the most useful visa category to get and to keep specialized workers long enough to settle in and invest sustained attention and effort into their work environment. Renewable for up to six years, this visa classification can provide employees the sense of stability that enables them to make real contributions to their employer in hopes of furthering their careers.

The robust number of applications that go into the lottery attest to the health of the U.S. economy and a real need for these skilled workers. It also signifies the desire of those U.S. visa sponsors to work with the best applicant available anywhere in the world.

Companies are willing to jump through hoops because the H-1B applicant is the exact right person for the job. The process is already onerous for smaller companies who may find that the higher filing fees sting. (Of USCIS application categories, the H-1B is particularly expensive, ranging from $1,710-$2,460.)

Still, companies suffer these obstacles because of their strong need for that skilled worker and their knowledge. Jamming up foreign hiring hinders U.S. companies from developing their true and total potential.

Certainly, the H-1B is flawed, but its original purpose still intact. There’s no reason that comprehensive reform can’t cure what ails it. If the United States is the promised land, keep in mind that H-1B visa holders make their own promise in return: Let us live here, and we will help you to prosper.