H-1B

Much of the work of U.S. Tech Workers has been centered on the H-1B visa because this is the visa that has had the most impact on American tech workers. Established under the Immigration Act of 1990, the H-1B originally was intended to bring foreign nationals with highly specialized and/or uncommon skills to perform specific work for a temporary duration in the United States.

This visa program has been corrupted from its original intent, now transformed into a conduit for the mass migration of foreign workers who are ordinary, entry-level workers – workers who displace Americans from jobs.

The H-1B program has become the primary feeder to the employment-based Green Card applicant pool, with roughly 75 percent of all H-1B visas going to Indian nationals annually. A long Green Card wait time for Indian nationals is a direct result of their over-subscription, and their ability to “legally” overstay the temporary visa through which they arrived in the U.S. – largely because of the American Competitiveness in the 21st Century Act (AC21). This created the concept of “dual intent,” wherein a foreigner applying for a nonimmigrant (i.e., temporary) work visa could be considered to simultaneously intend to return home and intend to remain permanently in the U.S.

This change had a number of entirely predictable effects. First, it transformed Green Cards into a publicly provided fringe benefit for employers to induce aliens to become guest workers. Second, it turned the labor certification process for Green Cards into a total joke. H-1B and L (enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its U.S. offices) visas do not require the employer to prove an American is not available for a job, but Green Cards do.

Under the dual-intent system, employers have already filled the position with a guest worker before they make the Green Card petition. They now have to find a way to reject all Americans who apply for the job. They would not be able to attract guest workers without the promise of a Green Card. Third, it created backlogs. Allowing a guest-worker visa program to flow into a Green Card program with stricter requirements and limits is like having a 4” water pipe flow into a 1” water pipe.

The backlog problem was exacerbated by Indian interests taking over the H-1B program early on and developing a virtual monopoly over the program. Congress decided long ago to foster national-origin diversity in the immigration flow by limiting any one country to a maximum of 7 percent of Green Cards each year (with exceptions for certain categories), but India gets about 80 percent of H-1B visas. By 2000, the Green Card backlog for India had reached the six-year duration of an H-1B visa.

So Congress doubled down on its 1990 mistake by allowing H-1B workers to remain in that status indefinitely once they got into the Green Card queue. The entirely predictable result was even bigger Green Card backlogs. The backlog for India is now decades long. Anyone from India who applies for an employment-based Green Card has no realistic chance of getting one. So the backlogged foreign workers hired lobbyists to change the system.

FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT

The Senate is prepared to triple down on the 1990 mistake with the grossly misnamed Fairness for High-Skilled Immigrants Act, which passed in the House of Representatives by a vote of 365-65 in 2019. Most of Congress was duped, not realizing what they voted for because of their lack of knowledge about the issue. The bill would remove the per-country limits on employment-based Green Cards and would have a number of entirely predictable effects.

If this legislation passes in the Senate, and isn’t vetoed by the President, we will be on the verge of turning the legal immigration system into as big a mess as we have seen at the Southern border with illegal immigration.

Imagine the screams when industries outside of high tech (which dominates H-1B) discover they can no longer get Green Cards for their foreign workers. Imagine the screams of nearly every ethnic group in the country when they discover their compatriots can no longer get employment-based Green Cards. The next move, as the architects have secretly orchestrated, would be for Congress to increase the number of Green Cards to try and fix the mess. This will be a short-lived solution as well, because at some point, demand for Green Cards will exceed supply.

This bill calls into question the basic competence of Congress. Few people in Congress have thought through the implications of the bill. There were no hearings and no debates on the Fairness for High-Skilled Immigrants Act. Yet the Democratic House leadership passed its version of the bill (HR 1044), thanks to the clever work of former immigration attorney turned Congresswoman, Zoe Lofgren (D-Calif.). In the Senate, Mike Lee (R-Utah) has consistently worked to use the same tactic of passing the bill without debate or a hearing.

This bill would dramatically change our employment Green Card distribution system by eliminating a safeguard that prevents Green Card numbers from being monopolized by citizens of one or two countries. Known as the “per country cap,” each country is allotted 7 percent of 140,000 employment-based Green Cards annually; this provision ensures that employment-based visas are available to a truly global talent pool in a variety of occupational sectors.

It should not be scrapped; eliminating it would benefit one industry (Big Tech) and two groups of applicants (Indian tech workers and Chinese investors) and squeeze out all others. There is nothing “fair” about the bill.

• This bill would reward employers who replaced American workers with hundreds of thousands of low cost and less skilled contract workers who entered on temporary visas (mainly H-1Bs), often working in the tech sector. These employers are mainly Big Tech and Indian outsourcing companies (TATA, Infosys, Cognizant, Nasscom, Accenture, etc.).
• The foreign contract workers accepted the arrangement because they were promised Green Cards after a few years. Because more Green Cards were promised than can be delivered under our legal system, the waiting list has grown over time. No contract workers are being forced to return home, because H-1B visas can be extended past the six years, thanks to Congress passing AC21 that allows H-1B visa workers to remain in the United States indefinitely once an application for a Green Card has been filed. Because so many workers from India were recruited, they have to wait in a longer line for a Green Card under current rules.
• Under current rules, citizens of India are actually getting about 25 percent of all the professional employment Green Cards each year, more than the 7 percent because of the “spillover effect” – some countries do not exhaust their 7 percent quota, so remaining available Green Cards are given to the country requiring more. If this bill becomes law, citizens of India will get more than 90 percent of the professional employment Green Cards, according to USCIS, for at least the next 10 years. Green Cards would be unavailable to applicants from all other parts of the world (and many other occupations) for at least a decade, thus creating a new backlog for citizens from other countries.
• The IT contract workers (predominantly from India) overwhelmingly tend to be ordinary workers hired in large batches every year. In contrast, the Green Card applicants from the rest of the world often are individually sponsored by a wider variety of employers, not as part of a business model designed to exploit the temporary visa system. This would be a step away from a merit-based system.
• A bill with such sweeping implications for U.S. workers should not be passed without a hearing and without the opportunity for members to offer amendments. But lobbyists and lead sponsors of the bill want to push this bill quietly without a formal hearing.

In order to solve the issue of backlogs, Congress needs to fix the source of the problem, not address the symptoms. The H-1B and L-1 visas need to be reformed so that they are not exploited to funnel labor from one country to take advantage of destitute workers who will happily work for lower-than-market wages in exchange for immigration benefits. Furthermore, the dual-intent nature of the H-1B and L-1 visas needs to be removed, as well as the AC21 provision that allows a temporary worker to indefinitely renew the work visa status past six years.