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Grow Your Business Your Team

The H-1B Visa Program Faces Regulatory Changes

Credit: joephotostudio/Shutterstock

The H-1B visa program, which offers 85,000 visas each year to foreign skilled or specialty workers, is undergoing some changes. The program, which grants certain employers access to foreign labor when the necessary skills are not available within the U.S. workforce, is facing three major changes initiated by the executive branch to clamp down on perceived abuses.

On March 31, the U.S. Customs and Immigration Services (USCIS) announced that computer programmers, typically considered the lowest qualifying position for the H-1B program, would have to demonstrate that they've attained at least a bachelor's degree in their field; associate's degrees would no longer be considered acceptable.

As a follow-up to this change, the USCIS announced on April 3 that "H-1B dependent employers" (companies with a workforce composition of at least 15 percent H-1B visa holders) would be subject to more stringent screenings to ensure compliance with the law. [See Related Story: H-1B Visas: How to Apply and Utilize Visas for Skilled Foreign Labor]

"This identifies heavy users of H-1B visas," Dick Burke, CEO of Envoy Global, told Business News Daily. "What (USCIS) is saying is, 'When we make site visits for compliance, we are going to focus on H-1B dependent companies or those with a high percentage of workers working off site … in a consulting capacity.'"

Then, on April 4,, the U.S. Department of Labor (DOL) jumped into the game with an announcement that it would step up enforcement actions against companies that violated the law, particularly with respect to displacing American workers.

"The H-1B visa program authorizes the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S," a U.S. DOL statement reads. "In recent years, some employers have used the H-1B program to hire foreign workers despite American workers being qualified and available for work, or even to replace American workers."

According to Burke, these three measures taken together are targeting what is known as the "infotech industry," in which companies employ large numbers of IT workers from abroad – most commonly from India – as consultants, which then support IT operations for other companies.

"There are instances where displacement does occur," Burke said. "And it's undebatable that infotech gets a large percentage of the H-1B visas. However, the problem is that (discussions of displacement) drowns out the bigger problem, which is a skills shortage in U.S. STEM jobs."

On April 7, just five days after this year's H-1B lottery opened, the number of applicants had already exceeded the limit. This has become the norm in recent years, with USCIS receiving almost three times as many applications as the limit in 2016.

"Many employers have retracted from sponsoring prospective H-1B employees because the uncertainty makes it cost-prohibitive for companies to invest time and money in an employee who may not be able to work for them after all," said Renata Castro, an immigration attorney at the Castro Legal Group.

While the current changes by the executive branch are focused on tamping down abuses, proponents of expanding access to skilled foreign labor suggest additional measures.

"H-1B reform is long overdue, and U.S. companies have a vested interest in demanding a fairer application process so that the U.S. continues to attract the best and brightest from all over the world, therefore placing the U.S. at the leading edge of innovation," Castro said. [See Related Story: H-1B Visas: How to Apply and Utilize Visas for Foreign Skilled Labor]

Lifting the limit is one such sought-after reform. The H-1B program's highest cap historically was 195,000, as opposed to today's 85,000. Another reform sought by H-1B employers is an increase in the minimum salary, currently $60,000, that must be offered to a visa holder. Proponents of this measure say it would reduce abuse and reallocate visas toward companies that already act in compliance with the spirit of the law.

Several bills in Congress include variations of these measures, like Sen. Orrin Hatch's (R-UT) Immigration Innovation Act proposal, which would raise the limit, and the Protect and Grow American Jobs Act introduced by Rep. Darrell Issa (R-CA), which would bring the minimum salary for an H-1B visa holder up to $100,000. Another measure, the High-Skilled Integrity and Fairness Act of 2017 introduced by Rep. Zoe Lofgren (D-CA), would bring the minimum salary up to $130,000.

Each of these measures would require congressional approval, as they involve the expenditure of additional funds on the program that the executive branch could not unilaterally require, Burke said. While abuse tends to dominate the conversation, he added, it's important to remember the risks of tightening the program to the point of gutting it entirely.

"At U.S. universities right now, there are probably 900,000 international students," Burke said. "(Why) educate the best and brightest … and then just give them a 6 percent chance to live and work here when they graduate? If they stay, they pay taxes, contribute to economic growth and so on, and yet they're given a less than 10 percent chance to win the (visa) lottery."

Adam C. Uzialko

Adam received his Bachelor's degree in Political Science and Journalism & Media Studies at Rutgers University. He worked for a local newspaper and freelanced for several publications after graduating college. He can be reached by email, or follow him on Twitter.