DHS Tightens Curbs on H-1B Program

Officials at the Department of Homeland Security have tightened an obscure regulation in the H-1B program, likely curbing companies’ ability to outsource additional white-collar jobs to cheap visa-workers living in the United States.

“This is a sinister design by the Trump administration to grind H-1Bs and legal immigration to a halt, create more uncertainty among vulnerable [H-1B],” said a Tweet from immigration lawyer Cyrus Mehta.

“This is a major blow for international students currently in the ‘cap-gap’ with no H-1B approval by October 1st,” according to Texas immigration lawyer Emily Neuman. “This is also a major obstacle to H-1B transfers … [so] workers will be hesitant to change jobs.” Neuman wrote.

“More bad faith decisions …  designed to cripple our high skilled immigration system,” complained Greg Siskind, an immigration lawyer who specializes in importing foreign doctors, despite the exclusion of many American students from vital residency training programs.

“This is a big deal,” said William Stock, a Philadelphia immigration lawyer and a former president of the American Immigration Lawyers Association.

The new policy was announced by DHS’s U.S. Citizenship and Immigration Services agency, which is headed by L. Francis Cissna:

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.

The new rule — plus prior bureaucratic changes — mean that companies cannot rush hundreds or thousands of H-1B visa requests through the system, but must plan and hire lawyers to make sure the applications are correct. The resulting delays also mean that companies cannot hire all of their new foreign employees in the Spring before Americans graduate from college in the summer.

This bureaucratic pressure has stopped the program from growing larger, but it has not yet pushed the number of requests for new workers below the current level of roughly 100,000 per year.

USCIS is also moving ahead, slowly, with plans to stop issuing work permits to the spouses of H-1B visa-workers. Former President Barack Obama issued the work-permit, even though the H-1B law does not include any provision for awarding the work permits. Withdrawal of the work permits, dubbed H4EADs, would cancel 100,000 work permits, and reduce the economic value of H-1B visa to the workers and also to their employers.

The process has also not implemented President Donald Trump’s campaign promises. “I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program,” he said in a March 2016 statement. “No exceptions,” he added.

In August 2015, for example, he issued a reform plan saying:

We graduate two times more Americans with STEM [science, technology, engineering and math] degrees each year than find STEM jobs, yet as much as two-thirds of entry-level hiring for IT jobs is accomplished through the H-1B program. More than half of H-1B visas are issued for the program’s lowest allowable wage level, and more than eighty percent for its bottom two. Raising the prevailing wage paid to H-1Bs will force companies to give these coveted entry-level jobs to the existing domestic pool of unemployed native and immigrant, instead of flying in cheaper workers from overseas. This will improve the number of black, Hispanic and female workers in Silicon Valley who have been passed over in favor of the H-1B program. Mark Zuckerberg’s personal Senator, Marco Rubio, has a bill to triple H-1Bs that would decimate women and minorities.

DHS officials are working on H-1B regulatory reform for release next year, but they are under intense pressure from business lobbies.

Industry executives and investors strongly oppose any cutbacks to the nation’s various visa-worker programs, which now keep a population of roughly 1.5 million white-collar workers in a wide variety of jobs throughout the United States. None of these workers are immigrants, and most have multi-year work permits under several programs, such as the H-1B, L-1, OPT or J-1 programs.

This huge visa-worker labor force — plus the inflow of legal immigrants — push down salaries for American college graduates and also expands companies’ revenues, profits and stock values.

The government-delivered inflow of foreign labor has reached up to many once-prestigious high-tech white-collar jobs that were widely seen as a hard-earned pathway to a prosperous and secure future. Foreign-born workers comprise 43 percent of medical and biological scientists, 38 percent of physical scientists, 38 percent of software developers, 36 percent of computer engineers, 31 percent of economists, 28 percent of physicists and doctors, 27 percent of clients, 27 percent of electronics engineers and 25 percent of software programmers, according to the data revealed by the Center for Immigration Studies.

The salary loss is likely to grow if Congress approves the HR 392 proposal by GOP Rep. Kevin Yoder to lift the “country caps” on employer-sponsored immigrants, or implements donor demands for more visa-workers, or if President Trump drops his Four Pillars immigration reform plan or quits his regulatory efforts to shrink the visa-worker programs. In February 2018, an alliance of Democrats and business-first Republicans — backed by business groups — blocked Trump’s Four Pillars pro-American reform in the Senate.

Roughly 400,000 of the H-1B visa-workers are have gotten conditional approval as immigrants, which allows them to stay in the U.S. for many years until they get green cards, despite the expiration of their temporary work-permits. These 400,000 visa-workers, plus their 400,000 family members, have a huge incentive to change federal law and have lobbied many legislators in Congress to endorse Yoder’s fast-track green card HR 392 measure.

On Facebook, a group of disadvantaged American professionals is rallying protests against the H-1B program, as well as the Yoder HR 392 bill that would allow them to compete against Americans for all related technology jobs.

.@realDonaldTrump @Dawnnewyorker handed you a letter which intelligently and emotionally tells the truth about outsourcing, offshoring… pic.twitter.com/4iPhp5Q5Pn

— Sara Blackwell (@4US_Workers) August 17, 2018

Their visa-workers’ main political advisor, former Democratic Senate staffer Leon Fresco, is declaring that Yoder’s HR392 measure will be included in the 2019 budget:

https://twitter.com/FrescoLeon/status/1034539065675276290