For a moment, it looked like the H-1B filing deadline was going to pass without much change from the previous administration. Other than a shot across the bow the Trump administration did little to indicate any real changes to the program. Yesterday’s announcements didn’t really change that in any substantive way, although they did add a new sense of concern over whether – and how – the administration would go after companies it perceives are putting US workers in a “disfavored status.”
After all, the tests for obtaining an H-1B visa don’t really measure, or even attempt to measure, whether an available US worker was overlooked. Rather, the goal is to ensure that there is no wage incentive to hire foreign workers over similarly qualified US workers, the idea being that market forces would do the rest. In some sense, that’s a very Republican approach to regulation, and for some time it worked pretty well.
Since the late nineties, however, the H-1B visa program has become much more controversial. For many it’s seen as a vehicle to bring in cheaper workers with lesser qualifications to unfairly complete for US jobs. The tech industry, on the other hand, insists that these visas are critical for the US IT industry.
There’s no doubt that there is abuse in the H-1B program (and, as a result, the L-1B visa program as well), and that the program could readily be improved. There’s also little doubt that the pool of ready, willing, and qualified US workers looking to step into these positions is limited. Indeed, many of my clients, coming in from overseas to start doing business in the United States, have been extremely frustrated to find that the pool of qualified workers in their area is made up largely of other non-US workers for whom expensive and time-consuming visa applications are required. The program would definitely benefit from a balanced review by Congress and some smart modifications, as have been proposed by any number of practitioners and law professors. A good start might be limiting the use of H-1B visas and L-1B visas by so-called body shops, since those employers have the market power to push down H-1B wages significantly over time.
Unfortunately, that’s not what’s happening, and the administration’s ad hoc method of changing immigration law is sowing uncertainty while giving companies neither the time nor the tools to plan for change. Had this announcement been made in January, companies whose use of the H-1B visa was perhaps unnecessary or improper would have at least had the chance to test the US market and determine whether the non-US worker was actually needed. As with the travel ban, however, this most recent announcement comes after all of the applications have been prepared, checks have been cut and, frankly, most everything was already in the mail. As with the travel ban, that’s not fair to the companies or the people who are planning on those visas for their livelihood.