Is the H1B Visa Annual Quota On the Way Out?

Once again, the H1B visa is in the news, as some of the executives of top US tech companies are weighing in on possible reform measures.  They are especially concerned about expanding the rules that pertain to the annual limit of H1B visas awarded. Most recently, Eric Schmidt who is Chairman of Alphabet, parent company to Google, had some choice words about the annual quota of 85,000 H1B visas.

Specifically, he said: “The single stupidest policy in the entire American political system was the limit on H-1B visas…”We want them (foreign workers) to work for us and not our competitors — we want 100% market share of all those people!” 

This was not Mr. Schmidt’s first attempt at lobbying on behalf of lifting the H1B visa quota, and may signal more support from Silicon Valley to direct reform to benefit US tech companies.   Mark Zuckerberg of Facebook has advocated for the same thing in the past few years.

In fairness, companies like Google, Apple and Microsoft pay some of the highest H1B salaries to foreign workers, so the issue of US worker replacement does not really apply to them.  They are really trying to hire the very best skilled IT workers, regardless of where they come from or their nationality. They need these foreign workers to remain competitive, not as a means of obtaining cheap labor.

No Quota on Visas…Fantasy or Reality?

It may seem improbable that the H1B visa quota could actually be increased or eliminated altogether, but when you consider the recent reform and enforcement measures, that could easily happen.  Here are a few proposed changes that could allow H1B visas to be limited solely by market forces:

 

  • Eliminating the four-tier ‘prevailing wage’ system currently in place

 

The Department of Labor recently commented that it would require new legislation to change the four-tier structure, where many H1B visas are awarded to the bottom two wage levels.  This measure is part of some new bills introduced in Congress.

 

  • Strict enforcement of the criteria to qualify as a professional in a ‘specialty occupation’

 

President Trump’s executive order called for federal agencies such as the USCIS to make sure that all applicants demonstrate the required skills, education and experience, in order to hire the ‘best and brightest’.

 

  • Increasing the salary requirement where a company must demonstrate that the position was advertised and offered to a US worker before opening it up to foreign nationals

 

This is also a part of several new bills that call for raising that wage level to over $100,000.

 

  • Prioritizing H1B visa petitions by salary level and experience, guaranteeing that the highest paid positions will be at the front of the line

 

While not yet formalized, it does seem this is the direction that the program is heading, to make sure it is available only for the most qualified and well-paid positions.

 

  • Eliminating all entry level or low skilled occupations from qualifying for an H1B visa

 

The USCIS has already begun to act on this, stating that entry level computer programmers would no longer qualify for H1B visas.

A combination of all of these potential and current reform actions could easily make H1B visas a ‘market-driven’ work permission in the US.  In other words, only companies willing to pay the highest salary for highly skilled professionals would have a chance at having their petitions approved, and others would not even attempt to apply given more strict guidelines.  In the view of many commentators, this would be the best possible outcome for both US companies and experienced foreign professionals.

  • June 23rd, 2019
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