Are American immigration policies hopelessly outdated and doomed to put the country at a disadvantage when it comes to curating specialized talent? Or does the federal government need to tighten its policies in order to preserve American jobs?
The debate over those questions is continuous. The Trump administration attempted to crack down on work-based visas such as the H-1B; now the Biden administration has rolled back at least some of those rules and regulations. A July 13 hearing before the House Judiciary Committee, titled, “Oh, Canada! How Outdated U.S. Immigration Policies Push Top Talent to Other Countries,” illustrated both sides of this ongoing debate.
For critics of the system, the arguments are pretty clear-cut. “Current H-1B implementation promotes usability at the expense of filling skills gaps and protecting workers,” Dr. Ronil Hira, an associate professor at Howard University, said in his statement before the committee. “As a result of these choices, the majority of H-1B workers are competing with, rather than complementing, the US workforce. Their hiring and employment are adversely affecting the wages and working conditions of U.S. workers. Further, the lack of adequate protections mean H-1B workers are frequently subject to exploitation.”
Hira added: “For more than fifteen years, offshore outsourcing firms have been amongst the largest H-1B employers. The rise of H-1B visa use fueled the rise of white-collar offshoring, destroying middle-class jobs and shipping innovation overseas. In 2020, the most recent data available, more than half of the top 30 H-1B employers continue to be offshore outsourcing firms. These companies exploit the H-1B program’s weaknesses to facilitate the transfer of U.S. jobs offshore as a lower cost alternative to hiring U.S. workers, and sometimes even directly replace incumbent U.S. workers with H-1B workers who are paid wages that are far below market wage rates.”
The Trump administration, in its final months, attempted to tackle at least part of the criticism over offshoring by proposing a new system that would have assigned H-1B visas based on wages. Raising wages wouldn’t have necessarily hurt companies’ attempts to secure highly specialized workers (such as artificial intelligence experts) whose skills are always at a compensation premium, but it would have eroded the margins of the business-services and consulting firms that apply for thousands of H-1B visas per year. Critics have long claimed these firms use the H-1B to bring in contractors at relatively low prices.
But as Forbes recently reported, the DOL rule is seemingly dead in court, citing a client alert from Berry Appleman & Leiden, an immigration-centric law firm. “DOL did not oppose vacating the rule because it had already significantly delayed the effective date to allow time to consider concerns raised in the litigation and regulatory comments,” read that alert. “The agency is in the process of reviewing information it received in response to a Request for Information on prevailing wage methodology.”
Meanwhile, advocates of the H-1B argue that America really does have a talent deficit—one that can be filled by bringing in highly skilled people from overseas. To restrict the H-1B, they argue, is to drive that talent to other countries, such as Canada. “In the United States, H-1B visas are essential because they typically represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in America,” Stuart Anderson, executive director of the National Foundation for American Policy, testified at the same Congressional hearing as Hira. “However, numerical restrictions on high- skilled temporary visas block the vast majority of foreign-born applicants from working in America in a given year.”
Anderson continued: “In March 2021, employers filed 308,613 H-1B registrations for cap selection for FY 2022 for only 85,000 H-1B petitions (65,000 plus a 20,000-exemption for individuals with an advanced degree from a U.S. university). That means over 72 percent of H-1B registrations for high-skilled foreign nationals were rejected even before an adjudicator evaluated the application.”
Anderson (and other H-1B advocates) believe that the premises underlying H-1B criticism are faulty. Foreign-born scientists and engineers, they argue, aren’t uniformly willing to accept less money than their American counterparts, and those who earn lower salaries are generally newer entrants to the U.S. labor market. Also, the number of jobs in the U.S. isn’t fixed, which makes it harder to argue that jobs are being “taken away” by workers on the H-1B.
Only one thing’s for certain: This isn’t a debate that will resolve anytime soon. Tech companies everywhere seem dedicated to utilizing the H-1B visa, and the Biden administration has yet to announce any sort of overarching policy that tackles critics’ concerns.