At first glance, the term “H-1B” looks like a random amalgam of letters and a number. But the importance of the concept cannot be minimalized. The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations such as science and IT. The H-1B visas last for three years, and can be renewed once.
One of the key principles guiding the U.S. immigration system has been admitting foreign workers with skills that are valuable to the U.S. economy. The U.S. issues about 85,000 new H-1B visas each year, and most of the visas are going to tech workers, according to the federal government. The visas are so popular that the federal government conducts a lottery to distribute them. But times are changing.
According to the U.S. Citizenship and Immigration Services (USCIS) website, “The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”
The anti-discrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing, and recruiting. This means that employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.
The Trump administration injected new doubt into the H-1B visa process warning employers about discriminating against U.S. born workers and announcing site visits to companies that employ a high ratio of workers on H-1B visas. Join the Federal Bar Association in Washington, D.C. May 12-13 at the Immigration Law Conference to explore employment-based immigration issues. Sign up at www.fedbar.org/immlaw17.
President Trump, who campaigned on an “America First” philosophy, has promised to “end forever the use of the H-1B as a cheap labor program” and require companies to prioritize American job applicants. In a similar vein, the president has pledged to “protect American workers by combating fraud in our employment-based immigration programs.” Attorney General Jeff Sessions went so far as to say that he would consider eliminating H-1B visas altogether. At the very least, it appears that the Department of Homeland Security would be taking further steps to deter and detect H-1B visa fraud and abuse.
President Trump argues “decades of immigration have produced lower wages and higher unemployment for our citizens.” But a recent study examined the growth of computer science workers on temporary H-1B visas from 1994 to 2001. The report concluded that high-skilled immigration leads to the creation of more IT firms in the U.S. and lower prices of IT goods.
The 2017 Immigration Law Conference May 12-13 will handily dissect the issue of employment-based immigration. Attorneys, employers, and government officials will examine how the employment-based U.S. immigration system works—in theory and in practice. Sign up today at www.fedbar.org/immlaw17.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.