The Future of H-1B Visa Program Remains Unclear

This week many foreign workers and their employers are rushing to get their H-1B applications ready for filing on April 3 - the first day that such applications are accepted by USCIS.  Applicants have questions about many things - Did they submit a complete application? Pay the correct fees? Provide all the required evidence? And most important, will their cases be selected in the "visa lottery"?  At the same time, they are also nervous about the future of the H-1B Program, given the recent hot and often negative media discussions about the visa program.    

Perhaps "uncertainty" is the word that best summarizes the future of the H-1B program.  There has been lots of discussions and debates on the subject, but so far no concrete reform plans have been proposed. The President himself appears to have changed positions on this very issue several times. Considering the age of the program, some sort of reform or makeover is due.  The current form of the H-1B Program was codified in the Immigration Reform and Control Act of 1990 and signed into law by President George H.W. Bush.  It was mostly created to bring in hi-tech workers during the dot-com era.  According to a recent study by Goldman Sachs, an estimated 900K to 1 million persons are working in the U.S. on H-1B visas.

During the Presidential campaign, President Trump had been critical of the visa program.  However, he also stated that he was okay with it as long as foreign workers come in legally. As a businessman, he also used the H-1B program to hire foreign workers.  At times he seemed to agree with the critics of the program that H-1B workers are "cheap labors" who take away jobs from American workers. Other times, he said that if certain U.S. companies need skilled workers, they should be allowed to bring them from other countries.  He also commented that it would not be wise to send foreign students who were educated in the U.S. home. 

Although so far the Trump Administration has not presented any plans to change the H-1B program, the White House Press Secretary recently stated that they were reviewing all visa programs as part of their ongoing efforts to ensure national security. In fact, USCIS recently suspended the use of premium processing services (or expedited services) for all H-1B petitions starting April 3.  Such a move suggests that the Administration needs time to evaluate the visa program, which is actually a good idea given the complexity of the current H-1B regulation.  Emotional arguments should be put aside and focus should be placed on the facts and data.

The fact is that U.S. employers must agree to pay H-1B workers the market wages according to the regulation. And they must pay a minimum of about $1700 filing fee to petition an H-1B worker ($750 additional if they have more than 25 employees), not to mention legal fees and other administrative costs.  For employers who have 50 or more employees and of which more than 50% are in H-1B or L status, they must pay an additional fee $4000 when filing for an employee for the first time. They must also agree to pay for the return transportation if an H-1B worker's employment is terminated prematurely, and to allow government officials to visit the job site at will. Would employers be willing to pay all these fees and go through all this trouble of hiring an H-1B worker if they could find a qualified, ready, able and willing U.S. worker?

It is also a fact that America as a whole is falling behind in STEM education, according to various reports and studies.  While we are trying to catch up in STEM education, our employers especially those in technology fields cannot afford to wait.  Just ask Bill Gates and Mark Zuckerburg. To them, the H-1B program is not a luxury but a necessity. It is also no secret that American companies prefer consultants over salaried employees in recent years for various reasons - costs control, flexibility, expertise, etc.  Consequently, to meet this demand many H-1B professionals play the role of consultants in U.S. companies.

Yes there are incidences where employers do abuse the visa program at the expense of American workers, but these employers are going to such things regardless of the program.  Are we going to chop down the tree just because of a few bad apples?  Any study or review of the program should be based on facts and data rather than political motivation.