Last Call for H-1B Visa: The Death of the Program as We Know it

For many years, the H-1B visa has provided a unique opportunity for foreign specialized workers to join the U.S. workforce. The visa was initially designed to supply American companies with foreign workers to offset shortages in the U.S. labor market. However, after a tumultuous presidential election, increased attention is now being placed on U.S. immigration policy and the H-1B visa is now under intense scrutiny from both sides of the political aisle. Legislation is now being introduced in the U.S. Congress that is bound to dramatically change the rules for H-1B visa holders. It is critical for foreign workers and their employers to understand the potential ramifications of these changes and to act fast.

Criticism of the H-1B visa has typically taken two forms. First, there are those who criticize the H-1B visa because they claim that it has been widely abused. The initial purpose of the visa was to help U.S. companies fill shortages in the labor market, but some companies have abused the visa in an attempt to outsource American jobs to less expensive foreign workers. These critics of the current visa rules have attempted to close loopholes that would otherwise incentivize companies to seek foreign labor in place of existing American labor. Second, there are those who broadly criticize the H-1B visa by suggesting that the program inherently harms the U.S. workforce. This second criticism of the H-1B visa is now gaining traction among both Democrats and Republicans. New guidelines for the H-1B visa are being proposed in both houses of Congress that could radically overhaul the program.

In the House, Rep. Darrell Issa (D) has introduced “The Protect and Grow America Jobs Act.” Issa claims that the legislation aims to “ensure that our valuable high-skilled immigration spots are used by companies when the positions cannot be filled by the existing workforce.” Issa’s bill would increase the salary requirement for an H-1B visa from $60,000 to $100,000. The purpose of this change, he claims, is to prevent companies from outsourcing American jobs to foreign workers. Issa represents a district of California that has unfortunately seen a lot of H-1B abuse by large corporations. But some critics in the House claim that Issa’s bill does not go far enough.

Rep Zoe Lofgren (D) has introduced a bill of her own called “The High-Skilled Integrity and Fairness Act of 2017.” Unlike Issa’s bill, Lofgren’s bill raises the salary requirement to $130,000. Lofgren’s bill also attempts to change the way companies will allocate H-1B visas going forward. Under her proposed changes, the visa program will prioritize visas to companies who are willing to pay 200% of a wage calculated by survey. Lofgren claims that her bill will also make several other changes that include: (1) eliminating the current caps on foreign workers based on nationality; (2) setting aside 20% of the annually allocate H-1B visa for small and start up employers; and (3) building a bridge from F-1 student status to Lawful Permanent Residence.

Over in the Senate, Ohio’s Sherrod Brown (D) has introduced the “H-1B and L-1 Reform Act” that he claims will close loopholes and increase protections for both American workers and visa holders. One major component of Brown’s bill is that it requires employers to first offer vacant positions to equally or better qualified American workers prior to seeking H-1B holders. His bill would also adjust the salary requirements for H-1B visas.

The major changes indicated in the bills cited above represent only some of the possible changes coming to the H-1B visa program. The bills suggest that salary requirements could change dramatically, which is why it is critical for many foreign workers to get H-1B visas as soon as possible.

In addition to the changes to H-1B visas being proposed by Congress, the Executive branch is also preparing to make changes of its own. President Trump and his Attorney General, Jeff Sessions, have long called for drastic changes to America’s immigration scheme. The president has repeatedly declared that he wants an immigration system that will attract only the “best and brightest,” though many of the details surrounding his policies remain unclear. One change that does seem on the president’s agenda, however, is a potential end to the current H-1B visa “lottery system,” which grants visas on a partially randomized basis. The new administration is hinting that it might change the rules to function more on a merit system, which could end up favoring non-dependent H-1B companies.

The current political climate suggests that foreign workers will continue to face uncertainty in the months and years to come. Additionally, the recent hysteria over immigration reform tends to fly in the face of evidence. For instance, a major study published by the Harvard Business School demonstrates that an increase in H-1B visas actually correlates to an increase in U.S. patent applications. Increased specialized immigration is hardly the problem facing the U.S. economy—in fact, it is probably one of the best solutions.

The H-1B visa has been a critical resource for specialized foreign workers who wish to work in the U.S. But changes are almost certain to come in the future, which is why it is critically important for foreign workers to plan ahead and explore the visa options that could best help them. It is not too late to plan ahead—but time is running out.

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