It Happens Every Spring: The H-1B
H-1B Specialty Occupation Workers
The H-1B classification is for what the Immigration & Nationality Act (INA) calls "Specialty Occupations," defined as jobs that are sufficiently complex that a minimum of a U.S. bachelor's degree (or equivalent) is required. People in H-1B status work in a variety of industries, but are heavily tilted towards STEM occupations. Companies like Google and Meta (and likely X) file hundreds of petitions each year in this category. So how do you get one?
The Annual H-1B Lottery
If Company X wants to hire Susan from Ireland via the H-1B, they must first enter the annual H-1B lottery. The INA limits the number of H-1Bs that may be issued each fiscal year, commonly referred to as the "cap." Currently it is at 65,000, with an additional 20,000 for those who received a U.S. Master's degree (so 85k total).
Registration opens in March, and employers have two weeks to enter all employees they wish to be considered. On April 1st, USCIS runs a random lottery of the entries and notifies those who were selected. After the selection, the employers file sponsorship petitions with USCIS.
Basics of the H-1B
It is granted in three-year increments and is limited to a total of six years, although in practice most remain in H-1B status for far longer (a topic for another time). There are exemptions from the annual limit for certain nonprofit organizations, particularly universities. It is a "dual-intent" status, meaning that you can be admitted in a temporary status even if you hope to become a permanent resident, i.e. you have "immigrant intent."
Pain Points and Myths
The program is widely misunderstood, and periodically it becomes politically controversial. Objections are usually of the "they're taking our jobs!" variety. As a result, some politicians are reluctant to propose meaningful reforms. The most common tropes include:
It's Cheaper to Hire H-1B Workers!
This is absolutely, demonstrably false. Consider first the legal fees an employer must pay at least every three years for these employees. Filing fees increased dramatically this year, and now each employer who sponsors an H-1B worker must pay an additional $600 per petition to support the asylum program. (Yes, those doing it the legal way are now directly subsidizing those who do not.)
Furthermore, Department of Labor gets a say about the wage. They conduct surveys to determine the "prevailing wage" for a given occupation in a specific metro area. The employer must pay at least the prevailing wage for any H-1B worker. Sounds nice, right?
What this does in reality, particularly for companies with thin profit margins, is squeeze the budget for labor, and in some cases it actually does depress wages for American workers (we have no such protection). This is not an indictment of the H-1B program; it is an indictment of the methodology used by DOL to determine the wages.
H-1B Workers Are Basically Slaves!
In any system, there will be bad actors, and this is true with the H-1B program. Several companies became notorious for bringing in H-1B workers and sending them out as contractors. However, USCIS caught onto this and has dramatically reduced this use of the H-1B.
It is true that the H-1B is tied to a specific employer, so changing jobs isn't a simple matter. However, it is not impossible. In fact, it happens all the time. Once an employee has been counted against the cap, they are free to change employers without entering the lottery again. The new employer files a change-of-employer petition and the employee moves on in their career.
They're Taking Away Our Jobs!
Hypothetically? Yes, they hold jobs that Americans might hold. They work side by side with US citizens every day. However, you don't need to dig too far to find that students in the U.S. enter STEM fields at much lower rates than China or India, and that is where the job growth is with the expansion of AI, cloud technology, etc.
Furthermore, there is massive supply/demand distortion. For those 85k visa numbers, there were 479k entries this year. In 2023, it skyrocketed to 780k, although there was substantial fraud so legitimate registrations were lower (closer to the previous year). 2022 saw 484k, and in 2021 it was low at 308k. Employers don't go to these lengths for skills that are readily available in the US market.
Potential Reforms?
The INA has not been significantly updated since 1994, so our laws are full of requirements that are now anachronistic. The only solution is congressional action (sorry), which could include:
Expanding the annual cap so that it reflects current demand.
Creating new categories of cap-exempt institutions to make the program more accessible to small companies doing critical work in the national interest (e.g. biotech).
Improving the methodology for determining the prevailing wage to more accurately reflect reality.
Eliminate antiquated compliance requirements.
Update the legal definition of Specialty Occupation given the move away from requiring degrees for many positions, particularly in fields where practical experience is more valuable.
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