Why The H1B Visa Program Needs An Overhaul

Nothing’s perfect. The same can be said for the H1B foreign worker visa program. I love it because I see it as one of America’s best programs for recruiting the best and the brightest foreign workers. But whenever I look at how it works, I am reminded of the days when I traveled to the former Soviet Union and tried to use their telephones. The phones looked like ours, but when you tried to use them, they operated like children’s toys and you could hardly get through to anyone on the other line. The H1B visa program is like that, in theory it is serving a useful purpose, but in practice the program could do better. The way it is, it has America entering an international fist fight for the best foreign workers with one of its hands tied behind its back.

Why the H1B visa program does not work properly.

The H1B visa program does not work properly because:

1. You have to apply in April for a job opening that can only start in October of the same year and not sooner unless you are applying for a cap exempt position.

2. There is a limit of 85,000 H1B visas per year even though there is almost double that number of applicants applying every year. To sort this out the government runs a yearly lottery, so your employer needs to win the H1B visa lottery to be able to offer you the job.

3. You have to get three separate government approvals involving:

a)  The Department of Labor for the employer’s Labor Condition Application (LCA) establishing that the job offered is paying at least the prevailing wage rate for workers doing that work in the same area and that there is no labor unrest at the employing organization,

b) The Department of Homeland Security to get the approval of the employer’s petition and the terms of employment including the lottery component,

c) The Department of the Secretary of State to establish at an overseas U.S. Consulate that you as the applicant meet the requirements posted by the employer in terms of education and experience to get the work visa. (Canadians are exempted from this step and are dealt with at the border.)

That’s a lot of work and much overlap.

4. For many employers and applicants, the paperwork and effort involved requires a degree of accuracy and stress that is not worth the result. The cost of preparing the application and the work and frustrations involved are significant. Not everyone has the stomach for it.

Cap Exempt H1B Visas

In some instances, if you get a job offer from a cap-exempt employer, such as the ones listed below, you are exempt from the 85,000 maximum visa cap restriction per year. The exemption applies to:

1. Institutions of higher learning such as universities and colleges.

2. Non-profit entities related to or affiliated with such higher education organizations.

3. Non-profit research organizations or government research agencies.

4. Organizations that require H1B workers to work at one of the above named organizations.

Such applicants do not need to win the lottery and can apply directly for their visas. Nonetheless, even here, the effort and cost of getting approval is substantial.

Program Critical to America and Many U.S. Immigrant Workers

Despite these shortcomings, the H1B visa is critical to America and many would-be American immigrants. The traditional and most common path for immigrants is F-1 student visa, to Optional Practical Training (OPT) for one year following graduation, to H1B visa for up to seven years or more if a permanent resident application is filed, to green card to U.S. citizenship. The process can take as much as long as a decade or longer to complete to get to permanent residence followed by five years more to get citizenship.

This is the ambitious path many foreign young people embark upon in their pursuit of the American Dream.

Enter COVID-19

The COVID-19 pandemic has turned the H1B visa program upside down. For one thing, due to the high number of Americans who have lost work and are now unemployed, there is a lot of pressure on the federal government to close the door on foreign workers on the argument that they are taking jobs away from American workers. The argument goes that these foreign workers are being paid low wages and that is the reason the tech industry in particular, among others, is so insistent on the need to leave the program intact. The result has been that President Trump recently implemented a freeze on granting H1B visas to applicants overseas until the end of this year. Should he be re-elected this freeze is likely to remain or be expanded. If not, it is likely to be lifted, at least according to the pronouncements of the respective presidential campaigns.

Other Considerations

In this regard it is worthwhile to consider a few factors that are at play in this immigration area.

Firstly, for the most part, the arguments against the H1B visa program do not make much sense if you consider the extra effort and cost employers must devote to attract foreign workers to America under the program. Hiring locally is much easier and makes a lot more sense. But the problem is that studies show that hiring locally is not the answer. To prosper as a country America must hire the best and the brightest from abroad and bring them and their know-how here. America needs them to help carry the load of its social programs including the cost of caring for an aging population. In short, America has a burning need for high skilled foreign workers.

Secondly, it is not true that America is the only country with such a program drawing in foreign labor while displacing its own workers. Instead, what is true is that America is in a fist fight internationally in its efforts to attract the best and the brightest candidates to the USA. Competition is fierce worldwide. For example, thanks in part to the failing H1B program, in the last few years the Canadian Toronto area has displace Silicon Valley as the leading magnet for technical workers in North America.

Finally, we have yet to discover what the rise of the remote workforce will mean to America’s technological leadership once we overcome the effects of the pandemic.

Repairs for America’s Future

In short, American has managed to compete with other countries and attract foreign special skilled workers, not so much because of the H1B visa program, but despite it. It is only the persistence of foreign workers seeking a brighter future that has led to any success in this area, but this will not last forever. There are alternatives where they can go. As for America, road repairs are desperately needed for the path of the F-1visa-OPT-H1B-green card-citizenship immigrant journey, not only for the sake of foreigners but also for the sake of a brighter American future. This will be true regardless of who gets elected in November.

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