The United States has been a magnet for skilled and talented immigrants from all around the world for the past several decades. The diverse set of ethnicities and cultures that surround us in our daily lives is living proof of this undeniable fact. Yet, as it has proven time and time again, the federal immigration system is incapable of functioning for the good of this country. As many readers may know, the H-1B visa is a skilled immigration visa which allows employers to employ foreign workers in specialty positions. ((Sweta Khandelwal, The H-1B Visa Explained, Law Gives (Feb. 9, 2015), https://www.lawgives.com/guide/54d5459277777753104f0200/The-H-1B-Visa-Explained.)) There is an annual cap of 85,000 H-1B visas, of which 20,000 are reserved for those with a U.S. master’s degree or higher, with a notable exception for those employed by universities, government research facilities, and non-profits. ((Nicole Torres, The H-1B Visa Debate, Explained, Harv. Bus. Rev. (May 4, 2017), https://hbr.org/2017/05/the-h-1b-visa-debate-explained.)) During recent years, the average number of applications for the H-1B visa stood at more than double the number of visas available. ((Sara Ashley O’Brien, H1B Visa applications decline for first time in 5 years, CNN Tech (Apr. 17, 2017, 6:16PM), http://money.cnn.com/2017/04/17/technology/h-1b-visa-applications/index.html.)) The fate of those hopeful applicants is left to a random lottery, which first allocates the 20,000 cap for U.S. master’s degrees or higher holders and the remaining 65,000 for all others. No real consideration of an applicant’s credentials, merits, time spent in the U.S., or occupation is made in this arbitrary process. A minimum salary of $60,000 and a U.S. bachelor’s degree or equivalent are the only metrics used to decide a candidate’s eligibility for the H-1B lottery. ((Lalit K Jha, H1B visas: Congressional panel votes to hike minimum salary, Live Mint (Nov. 16, 2017, 03:12 PM), http://www.livemint.com/Industry/IvukXamgndow0mnIrSrBML/H1B-visas-Congressional-panel-votes-to-hike-minimum-salary.html.))
Why is all of this relevant? It is a much-touted fact that the U.S. has some significant skill shortages in the fields of Science, Technology, Engineering and Math (the “STEM” fields). As of 2016, there were around 3 million more STEM jobs available than the U.S. had workers to fill them. ((Ruth Umoh, The US has a shortage of tech workers. Here’s how kids and schools can solve the problem, CNBC (Aug. 23, 2017, 12:09 PM), https://www.cnbc.com/2017/08/23/why-we-have-a-shortage-of-tech-workers-in-the-u-s.html.)) Intuitively, one might assume that the federal government would be utilizing the U.S.’s stature as the land of opportunity with its world-leading universities, infrastructure, and economy to attract all the best talents from around the world to fill those positions. But, perhaps surprisingly, this hasn’t happened so far. Every year, thousands of young, American-educated foreigners both in STEM and other industries are forced to leave the country after drawing the short straw in the H-1B visa lottery. ((Frida Yu, Is anyone good enough for an H1B visa?, The New York Times (Nov. 23, 2017), https://www.nytimes.com/2017/11/23/opinion/immigration-visa-h1b-trump-.html.)) No other reliable paths for permanent residency or green cards are given to these people, who have often invested hundreds of thousands of dollars for their education in the U.S. The fate of these students also affects the U.S. economy. One Bay Area software firm, Agiloft, was forced to send jobs over to China, as they could not recruit enough local talent and could not hire foreigners because of the cap on H-1B visas. ((Ethan Baron, Bay Area software firm will move work to China because of ‘stupid and self-defeating’ H-1B visa cap, Siliconbeat, (June 9, 2017, 12:14PM), http://www.siliconbeat.com/2017/06/09/h-1b-blamed-bay-area-software-firm-will-move-work-to-china-because-of-stupid-and-self-defeating-visa-cap/.)) As seen in the case of Agiloft, by forcing an arbitrary cap on a skilled work visa such as the H-1B with no consideration for local industry needs or annual cap adjustments, the federal government has indirectly forced local businesses to ship out jobs and work overseas.
Why would a country be opposed, or at least create substantial obstacles, to attracting and retaining the most talented and brightest young professionals, who are more often than not trained in its universities? The answer remains unclear, but one could conjecture a possible answer from the election of Donald Trump as the President of the United States. On his inauguration, President Trump stated, “it’s only going to be America first, America first.” ((Rachel Cao, Read President Trump’s full, blistering inaugural speech, attacking Washington, promising ‘America first’, CNBC (Jan 20, 2017, 12:10PM), https://www.cnbc.com/2017/01/20/transcript-of-president-trumps-inauguration-speech.html.)) While this could be interpreted in different ways, he was clearly speaking to his working-class supporters, many of whom tend toward anti-immigration viewpoints. ((Harry Enten, Perry Bacon Jr., Trump’s Hardline Immigration Stance Got Him To The White House, FiveThrityEight (Sep. 12, 2017, 5:59AM), https://fivethirtyeight.com/features/why-polls-showing-daca-as-popular-even-among-republicans-dont-tell-the-whole-story/.)) This anti-immigration sentiment is not solely focused on illegal immigrants. On April 18, 2017, President Trump announced the “Buy American and Hire American Executive Order,” in which he remarked, among other things, his intention to reform the H-1B visa system to cater to the most highly skilled foreign workers. ((Ali Vitali, Trump’s Executive Orders Aimed at Curbing Low Wage Foreign Hires, NBC News (Apr. 18, 2017, 3:51PM), https://www.nbcnews.com/politics/white-house/trump-s-executive-orders-aimed-curbing-low-wage-foreign-hires-n747906.))
There are multiple instances of U.S. corporations, such as Disney, abusing the H-1B visa program. ((Julia Preston, Lawsuits Claim Disney Colluded to Replace U.S. Workers With Immigrants, New York Times (Jan. 25, 2016), https://www.nytimes.com/2016/01/26/us/lawsuit-claims-disney-colluded-to-replace-us-workers-with-immigrants.html.)) Disney essentially used the H-1B visa program to replace some of its employees with cheaper foreign labor, while humiliating the laid-off employees by forcing them to train their replacements. ((Id.)). The abuse of the H-1B visa program by Disney and the like shows the shortcomings of the current visa system. It allows employers to hire cheaper foreign talent in lieu of American workers, while not enabling businesses to attract and retain a sufficient number of STEM talents to fill the shortage in the tech industry. One could infer that cheaper labor leads to more profits, and therefore should compel these profit-maximizing firms to continue the practice of replacing American labor with cheaper foreign laborers. However, one should at least consider the fact that a rational government would not design a visa program such as the H-1B to replace domestic workers with cheaper foreigners. The whole existence of any such “skilled” work visas are premised on the desire to attract more talented and hard-working labor to the country. The current administration has latched on to this wrongly fused hype and put in place further restrictions on the H-1B program by disallowing spouses of visa holders to work in the U.S. ((Jethro Mullen, Trump to propose ending rule allowing spouses of H-1B holders to work in the U.S., CNN Tech (Dec. 15, 2017, 1:55PM), http://money.cnn.com/2017/12/15/technology/h1b-visa-spouses-h4-trump/index.html.)) Restricting the spouses of H-1B visa holders from working will not solve a broken visa system that does not respond to the demands of the STEM industry, fails to consider enough intangibles i.e. occupation, credentials, merits and time spent in the U.S., and allows U.S. companies to find loopholes to displace American workers. The broken visa system is also hurting the U.S. economy. Multiple tech companies in the Bay Area and Silicon Valley are now contemplating moving their operations to Canada to provide better work security to its employees. ((Jessica Vomiero, Canadian tech could benefit if Trump ends work permits for visa holder spouses: experts, Global News (Dec. 23, 2017, 9:15AM), https://globalnews.ca/news/3931484/canadian-tech-benefit-trump-ends-work-permits-visa-spouses/.)) The fiscal impact of H-1B visas also must not be overlooked. A Senate proposal back in 2013 proposed to increase the number of H-1B visa by 180,000. ((Hoover Institution Editor, Additional H-1B Workers Would Add Billions to GDP and Federal Tax Revenue, (May 7, 2013), https://www.hoover.org/research/additional-h-1b-workers-would-add-billions-gdp-and-federal-tax-revenue.)) The proposed reform was set to generate an additional $456 billion to GDP and $113 billion to federal tax revenue over the next ten years, yet it was not passed and expired with the 113th Congress. ((Id.))
Going forward, there are some positives to look forward to. Senator Hatch of Utah, has proposed a bill that would expand the current cap on the H-1B up to 195,000 based on demand. ((Ali Breland and Brett Samuels, Hatch bill would drastically increase H1B visas, The Hill (Jan. 25, 2018, 09:31AM), http://thehill.com/homenews/senate/370650-hatch-bill-would-dramatically-increase-h-1b-visas.)) More importantly, the cap would not apply to holders of a U.S. STEM bachelor’s degree or a U.S. master’s degree or higher. ((Id.)) This could cause a drastic increase in the number of work visas given to foreigners, but to a domestic tech industry that is suffering from a critical shortage of labor, this would certainly go a long way in helping to solve that problem. Interestingly, this could also help U.S. higher education institutions, since a U.S. STEM degree or any master’s degree could theoretically guarantee employment. However, the expensive and arduous process of obtaining the H-1B visa means that foreign workers will still face an uphill battle to find employment in the United States, which should provide some comfort to those worried about the overwhelming influx of foreign workers.
The issues surrounding the H-1B visa and other immigration-related questions are inherently convoluted and difficult to administer. No one reform or bill will perfectly solve the current status of the H-1B visa program, nor should the Trump administration be solely blamed for the system as it is now. However, the current administration must seek to achieve the delicate balance between the needs of the domestic labor market and protection of local jobs. An overhaul of the current H-1B visa program could be a step in the right direction for skilled immigration in this country.