What are H-1B visas, and do they hurt American workers? Key things to know

It is H-1B visa season, and American companies seeking high-skilled foreign workers have been rushing to submit applications for visas since the government started accepting them on Monday. For the sixth consecutive year, the federal government was flooded with so many petitions that it announced Friday that it had already reached its annual cap of 85,000 of these visas in just five days.

Hailed by proponents as vital to American innovation, the program has also been criticized for displacing United States workers with cheaper foreign labor.

Critics also want to end special work permits issued to some spouses of workers on H-1B visas.

What is the H-1B visa?

It is a temporary visa that employers use to hire foreigners in “specialty occupations” for which there are not enough skilled American workers to fill available jobs. The workers must have at least a bachelor’s degree. It enables those employed to legally work in the United States for three years, with the possibility of extensions.

How does a worker get a visa?

Companies identify a worker they wish to hire and submit a petition on the candidate’s behalf. The typical petition is a collection of forms and documents describing the job and the unique qualifications of the person chosen to fill it.

Are all H-1B recipients in the technology sector?

Many are software engineers, computer programmers and other workers in the technology sector. However, H-1B recipients work in a variety of jobs. They can be architects, scientists, models and tattoo artists. Some are math and science teachers in rural school districts that have trouble recruiting American instructors.

How many visas are issued each year?

Congress established that 65,000 H-1B visas are available each year for workers with bachelor’s degrees, and 20,000 more are earmarked for those with master’s degrees or higher. Universities and research organizations are exempt from the cap.

Why is there a lottery to choose petitions?

In the past several years, the United States Citizenship and Immigration Services has received more petitions than there are visas. If the maximum number of applications is reached during the first five business days of April, the agency holds a lottery to randomly select which petitions it will process.

Can the visas lead to permanent residence?

Very often they do. Companies can choose to sponsor an H-1B worker for permanent residence. The green card applications are often approved, though they can take years to be issued.

Where are most foreign workers from?

India is the country of origin for more than 80 percent of H-1B recipients, with China a distant second. Next in line during the 2016 fiscal year were the Philippines, South Korea and Canada.

Do H-1B workers compete with Americans?

Supporters of the visa program say they fill a critical need for talent that is not available in the United States, especially when the economy is strong and the labor market is tight. Employers must attest that an H-1B worker will not adversely impact the wages and working conditions of American workers.

Critics say that employers often hire H-1B workers for lower salaries than they would pay Americans to do the same job. They point to Americans who have been displaced when companies have outsourced areas like technology maintenance to a company that brings in H-1B workers.

Who’s right?

As usual with immigration policy, it’s complicated. More than 40,500 companies sponsored workers for H-1B visas in the 2017 fiscal year. Many employers specifically target a worker with hard-to-find expertise whom they wish to hire to do specialized work — obviously because they could not find someone in the United States to do the job. In many cases, H-1B workers have gone on to create start-ups and develop cutting-edge technology that keeps America competitive.

But there are questions about who’s benefiting, collectively. About 20 companies accounted for 32 percent of approved H-1B petitions, according to an analysis by the Migration Policy Institute. Many of the employers are global outsourcing companies from India that supply entry-level workers to retailers, insurance companies and banks. Not all. Among them are also American firms who appear to be using the program to create a pool of cheap labor.

“Big household-name American companies are just as culpable as the outsourcing companies of abusing the program,” said Norman Matloff, a professor at the University of California, Davis, who studies the H-1B program.

So there has been some misuse?

Almost everybody agrees that there has, though it is probably not as widespread as critics claim. Abuses rarely result in penalties for the companies, experts say. In one highly publicized case in 2015, some Disney employees said they were told to train their foreign replacements if they wanted severance payments. Workers filed suit, but the judge dismissed the case; new litigation is pending in state court. Workers at other companies, including Toys “R” Us and New York Life Insurance Company, also said they lost their jobs to imported workers.

Last May, the former acting director of United States Citizenship and Immigration Services said the agency had started “multiple investigations” into “possible misuse” of the H-1B visa program and would turn the findings over for enforcement as warranted.

Ultimately, though, it is up to Congress to change laws that govern the program, since in most cases, practices that workers may claim as abusive are not necessarily illegal as the law is written.

What changes did the Trump administration start?

At campaign rallies, Mr. Trump introduced laid-off Americans who had been asked to train their foreign successors, saying, “We won’t let this happen anymore.”

Once in office, he ordered a review of the H-1B and other visa programs. In April 2017, he signed a “Buy American, Hire American” executive order, which has served to justify several recent changes.

For one thing, United States Citizen and Immigration Services, the federal agency that reviews the petitions, has tightened its oversight. Between January and August of last year, it issued 45 percent more challenges or requests for more evidence. That has delayed the issuance of visas, and some immigration lawyers report an increase in denials.

The agency has also stepped up the number of surprise visits by fraud teams to sites where large numbers of H-1B workers are employed. And in a policy memo earlier this year, it expanded its review of H1-B workers who are employed at third-party work sites. Now, it is requiring more details about what work will be performed, why a foreigner is needed to do it, and what wages are being paid.

What more does the administration plan to do?

The administration says it will end an Obama-era program that has allowed spouses of H-1B visa holders to work, as long as they had been approved and were waiting for a green card. Those work permits have been issued under a program known as H-4EAD.

Federal authorities have also suggested they may change the selection process for H-1B visas to ensure that they are granted to the “most skilled or highest-paid” job candidates.

Finally, Trump says he would like to scrap the lottery.

What about the role of Congress?

More sweeping changes can occur only if Congress passes new laws or overhauls the immigration system. The Trump administration’s call to end the lottery and raise wages for H-1B visa candidates as a means of recruiting qualified American workers has support among some Democrats and Republicans.