H-1B Visas in the Trump Administration

For years, American companies have used the H-1B visa program to employ workers from other countries. H-1B visas are available to foreign workers who seek employment in the United States in a specialty occupation, such as fashion models of distinguished merit and ability who plan to enter the American fashion industry. A specialty occupation, for purposes of obtaining an H-1B visa, is one that requires specialized knowledge and attainment of a higher education degree or the equivalent of a higher education degree. [1] Generally, foreign workers must have at least a bachelor’s degree to be awarded an H-1B visa, while some have more advanced degrees. H-1B visas are awarded through a lottery selection process from a pool of qualified foreign workers who have submitted applications.

In addition to submitting an application, qualifying for an H-1B visa also requires a foreign worker to have a relationship with an American employer that is responsible for filing a petition on behalf of the foreign worker. H-1B visas are often used by American companies seeking engineers, teachers, computer programmers, medical doctors, and physical therapists from other countries. Technology companies are frequently associated with the H-1B visa program as they regularly seek to hire foreign professionals with expertise in computer science and programming. While these, and other, American employers may petition to bring qualified foreign workers into their specialized occupations, H-1B visas are not intended as a means to discriminate against American workers. The Immigration and Nationality Act makes it an unfair immigration-related employment practice to discriminate against an individual, with respect to employment, based on that individual’s national origin or citizenship status.[2] This provision applies to American workers and protects them from discrimination that could potentially result from abuse of the H-1B visa program.

On April 3, 2017, the application and petition period for H-1B visas officially opened. Simultaneously, the Trump Administration issued the warning that American companies must first consider qualified American workers before resorting to H-1B visas for foreign workers. The Trump Administration had previously expressed concerns about H-1B visas being abused by American companies. While measures have always been in place to protect American workers from discriminatory hiring practices, the Trump Administration contends that many of these protections were not being enforced by previous Administrations. The Trump Administration has promised to investigate fraud and abuse, indicating a desire to a crackdown on the H-1B visa program.[3] This stance is in line with prior promises made by the President to revamp immigration programs that hurt American workers.

Despite the warning from the Trump Administration, thousands of petitions and applications were submitted for H-1B visas, in similar numbers as previous years. Congress set a cap of 65,000 on the number of H-1B visas that may be issued per fiscal year, with another 20,000 made available exclusively for foreign workers with advanced degrees. The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017, four days after the application period began, that the 65,000 cap had been met and that it received a sufficient number of H-1B petitions to meet the additional 20,000 visa allotment for advanced degrees.[4] The demand for H-1B visas often far outweighs the supply.

Proponents of the H-1B visa program argue that employers often seek foreign workers to fill job positions that are difficult to fill with American workers. The National Foundation for American Policy, for example, contends that highly-skilled foreign workers improve productivity, increase the growth of skilled labor, encourage business investment in the United States and contribute to economic growth.[5] However, critics believe that H-1B visas are not reserved to only the most skilled workers. Rather, American jobs are given to foreign workers, even when American workers that can fill the positions, to allow employers to obtain cheap labor.

Acting Assistant Attorney General Tom Wheeler stated that, “[t]he Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers.” Wheeler continued by declaring that “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”[6] The USCIS has also weighed in, announcing new efforts to deter and detect H-1B visa fraud. In a press release issued on the day the application period opened, the USCIS stated that, “too many American workers who are as qualified, willing, and deserving to work . . . have been ignored or unfairly disadvantaged” by the H-1B visa program. These employers, who abuse the H-1B program, negatively impact American workers by decreasing wages and job opportunities.[7]

In furtherance of the position taken by the Trump Administration, several measures have been put in place to scrutinize the H-1B visa process. The USCIS identified three areas it will focus on in detecting fraud and abuse, including cases where the employer’s basic business information cannot be validated through commercially available data; employers with high numbers of H-1B workers as compared to American workers; and employers filing petitions for H-1B workers who work at a different company or location.[8] Additionally, the USCIS announced that it would make targeted site visits to places where abuse is likely to occur, as well as random, unannounced site visits, in an attempt to locate employers and workers who abuse the H-1B program. The USCIS seeks to promote transparency about how the H-1B program is actually used in an attempt to make employers accountable for protecting American workers. The USCIS has committed to publishing a report at the end of the 2018 fiscal year on all H-1B petitions that were received, along with a searchable, web-based platform made available to the public for understanding how H-1B visas are being used. The USCIS has already established a new email address for individuals to send tips, information about potential violations and other observations relevant to H-1B fraud or abuse. The Department of Justice has taken a similar approach by encouraging those who have information regarding possible fraud or abuse to call a hotline. Additionally, premium processing for H-1B petitions, which allowed petitioners to pay a fee for expedited processing of H-1B visa applications, has been temporarily suspended for a period up to six months.[9]

A great deal of uncertainty exists about what additional measures the Trump Administration may take in the area of immigration reform. Immigration was a key issue during the President’s campaign and continues to be closely watched by both proponents and critics of immigration reform. What is clear, however, is that the Administration intends to take an aggressive approach against H-1B visa fraud and abuse, whether it is committed by individual workers or American companies that fail to use the visa program as it was intended.