H-1B Visas – The Joke’s On Us

The Immigration and Nationality Act of 1952 defined a non-immigrant temporary worker¹ under the original H-1 visa, as:

“an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability.”

In other words, this person would have been qualified to an exceptional extent, such that no other person in the U.S. could provide the service or expertise. Of course, businesses smelled an opportunity.

Recently, I caught a story of an IT firm in Iowa that posted an advertisement for an H1-B only person. The ad by American Technology Consulting, posted to the recruiting website ZipRecruiter, sought a java developer to work in San Diego. Initially, it stated “H1B Only,” but has now been changed. This seems to bring home something I’ve seen frequently, and that is a perceived abuse of the H1-B program. I say perceived, because the law has changed so much people who passed it in 1952 wouldn’t recognize it.

Beginning in 1970 and due to pressures from industry, changes were made in the foreign worker visa program that literally changed the intent of the original legislation. Congress, attempting to keep the US competitive in a growing world economy, effected changes that degraded it to the point where the current name no longer fits its true meaning.

By 1990, the law read like this:

nonimmigranttemporaryworker “an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is comingtemporarilyto the United States to performtemporaryservices of an exceptional nature requiring such merit and ability.”²

And in 2002  the 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215. There allows H-1B visa holders to extend their stay past the 6th year if a labor certification has been pending for at least 365 days. Furthermore, they can request this extension on a yearly basis until they get a green card. And, the definition change just a bit more.

Non–immigrant temporary worker: “an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability.” ³

The effect of these of changes has been obvious. Rather than the programs original intent, to allow companies to bring in a person or people on a temporary basis, to provide knowledge or services not readily available from American workers, it now simply allows businesses to bring in foreign workers at lower wages to replace American workers.

Senator Chuck Grassley (R-IA) has been one of the members of Congress trying to increase enforcement of the few remaining protections for American Workers. As early as 2009 he wrote in a letter to USCIS concerning the flawed H-1B program:

” The United States is in need of an immigration overhaul. … …The agency can take immediate steps to eliminate fraud in the H-1B program, … Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. …”

In March of 2017, Grassley said:

The program was intended to serve employers who could not find the skilled workers they needed in the United States. Most people believe that employers are supposed to recruit Americans before they petition for an H-1B worker. Yet, under the law, most employers are not required to prove to the Department of Labor that they tried to find an American to fill the job first. And, if there is an equally or even better qualified U.S. worker available, the company does not have to offer him or her the job. Over the years the program has become a government-assisted way for employers to bring in cheaper foreign labor, and now it appears these foreign workers take over – rather than complement – the U.S. workforce.⁴

I hold nothing against foreign workers, but this program needs to be changed to its 1952 intent. If there is full employment in the U.S., then this program can certainly be invoked to bring in additional workers. Until, we should be first taking care of the American Worker. At the very least, let’s demand enforcement of the few current regulations around the program.

1. According to the USCIS and USDHS
2. “History of H-1B Legislation Shows More Than Employer Abuses,” NumbersUSA, Charles Breiterman, October 28, 2009.
3. Ibid
4. Chuck Grassley (March 17, 2015). “Prepared Statement by Senator Chuck Grassley of Iowa Chairman, Senate Judiciary Committee At a hearing entitled: “Immigration Reforms Needed to Protect Skilled American Workers”, judiciary.senate.gov, Senate Judiciary Committee, June 7, 2015.