Proposed DHS Revisions to H-1B Offer Ray of Hope to U.S. Tech Workers

Guest Post by Joe Guzzardi

The Department of Homeland Security’s recently released Unified Agenda gives hope to U.S. tech workers that major, long overdue changes may be coming soon.

New DHS guidelines would provide relief to American tech specialists from the decades-long onslaught of overseas H-1B visa holders, L-1 visa international transfers and foreign-born Optional Practical Training (OPT) graduates with science, technology, engineering and math (STEM) degrees. The H-1B, L-1 and OPT are visas that have displaced American workers or blocked them from employment consideration. The visas are popular vehicles for U.S. corporations and Indian IT services companies to add personnel and, at the expense of American workers, reduce their overhead.

A recent Forbes Magazine article, “Trump Plans Far-Reaching Set of New Immigration Regulations,” states that the administration’s specific goal regarding H-1B visas is to revise – in other words, tighten – the specialty occupation definition to better ensure that only the most qualified foreign nationals are granted visas. To the surprise of many, some computer programming positions don’t require foreign applicants to hold university degrees to qualify as a specialty occupation and receive an H-1B visa. The proposed H-1B ruling may be published this month.

The L-1 intracompany transfer visa, already approved in increasingly fewer numbers, is also under further review. Overseas employees, who may or may not have the alleged specialty skills they claim to hold, may be subject to more thorough scrutiny. The L visa has no numerical cap, and employers are not required to prove that Americans are unavailable for the work. Neither do employers have to pay prevailing wage. The Office of Inspector General found that the L-1 visa is particularly susceptible to fraud. Moreover, the L visa allows spouses and minor children to come to the U.S. on L-2 visas. In all, tens of thousands of L visa holders and their spouses work in the U.S. without any federal oversight. A September 2020 ruling is expected.

Another program that DHS hopes to corral is OPT which, without congressional approval, has morphed into the nation’s largest guest worker program. The term “practical training” should not be confused with actual on-the-job training, but rather means full-fledged work authorization. DHS has allowed aliens who originally entered on student visas to stay over for years, without statutory authority, and take good jobs that might otherwise go to U.S. tech workers. As an additional incentive for students and their employers, both are exempt from payroll taxes.

Finally, the newest employment authorized but not congressionally approved work population, H-4 spouses of H-1B visa holders, are under renewed review. After years of intensive lobbying, spouses – 90 percent Indian women – holding H-4 visas were first granted work authorization documents during President Obama’s administration. President Trump has often expressed his intention to rescind work permission for the H-4 visa category, but has not achieved any notable progress. Whether H-4 spouses can legally be employed has been tied up in the courts for years. A DHS ruling may be issued in March 2020.

Immigration lawyers are apoplectic, and quite possibly unhinged, by the possible DHS overhaul. One prominent lawyer called President Trump’s employment-based visa revisions “a white supremacist immigration agenda” that would “bar…all immigrants of color.” Other attorneys were equally outraged, but used more delicate language.

But hysteria aside, the H-1B, the L, OPT and H-4 have been relentless U.S. job killers, and all are unnecessary. No American worker shortage exists, only half of qualified STEM graduates find STEM careers, and no evidence exists of wage increases that would confirm worker shortages.

In their report released this January and titled “Reforming US’ High-Skilled Worker Program,” authors Ron Hira and Bharath Gopalaswamy wrote that the current system undercuts opportunities for U.S. workers and enables exploitation of H-1B workers. Since its creation in 1990, the H-1B program has never been fixed to meet Congress’ original promises to safeguard U.S. jobs. Instead, the program has been expanded to allow even larger numbers of H-1B workers, admitting them for longer periods, while its flawed governing rules have remained unchanged.

U.S. jobs should go to U.S. workers; to argue otherwise defies common sense.

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