H1B Program Reforms?
President Trump’s new Executive Order, “Buy American And Hire American” has followed a major media campaign alleging “abuses” of the H1B program.
The order reads in particular:
“(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.
There have been allegations as reported by certain media that jobs which could be available to American workers are being offered to foreign workers at lower salaries. However, data from government agencies which process the H1B employment petitions point to the contrary.
As Department of Labor’s definition of H1B jobs clarifies, these positions are “specialty occupations”:
“… A specialty occupation requires the theoretical and practical
application of a body of specialized knowledge and a bachelor’s degree
or the equivalent in the specific specialty (e.g. sciences, medicine,
healthcare, education, biotechnology, and business specialties, etc.)”
Recent data provided by the Office of Foreign Labor Certification (for the year 2017) indicate that the top H1B certified positions were in the computer/software analyst/developer positions.
See, Selected Statistics By Program at:
These positions are in fact high-skilled and high-paid positions in
the US labor marker. These H1B positions require higher level education
and demand higher salaries, as certified by US Department of Labor.
Prior to filing for a visa or H1B status for their proposed employee,
the employer must file a Labor Condition Application for the job with
the department of labor.
The employer must attest that it will comply with wage and labor laws of the US when hiring the H1B employee:
- “The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely
affect other similarly employed workers. At the time of the labor
condition application, there is no strike or lockout at the employer
place of business. Notice of the filing of the labor condition
application with the DOL has been given to the union bargaining
representative or has been posted at the place of business.”
“The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.”
The fact that each year, H1B petitions exceed the “cap” numbers by 100,000s, indicates the extent of need for employees in this sector of US economy. Software/computer and information technology firms argue that the current “cap” and visa numbers for H1B jobs are far too low to meet the needs of the US economy.
Although the Executive Order has made a proclamation of more stringent scrutiny and reforms, it is unlikely the program will see significant changes. It appears that for the growth of the US economy, the H1B program should in fact be expanded and not restricted.
Our office is available to consult on H1B as well as other employment-related visa petitions.
Law Office of Atoosa Vakili
US Immigration Legal Services
100 Spectrum Center Drive, Suite 900
Irvine, CA 92618