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Changes Needed to the H-1B Visa Program

H-1B visa

Many New York companies depend on their ability to bring in foreign-born workers through the H-1B visa program to fill their open positions and attract talent. However, the H-1B visa program is mired in problems caused by too-low annual caps, substantial backlogs for immigration from certain countries such as India, and political issues. A New York immigration lawyer at Oltarsh & Associates helps employers with their petitions. Here is what you should understand about the current problems that roil this type of employment-based visa program.

Lower Immigration Equals Lesser Innovation

Historical data shows that a greater rate of innovation and growth occurs when more migrants move into a region. When immigration is instead restricted, companies in tech and research and development tend to be less successful with slowed growth and lower wages. Many immigrants also are likelier to start their own companies, helping to add jobs to the economy.

Many leading researchers initially came to the U.S. with H-1B guest visas, which were designed in the early 1990s to attract skilled professionals to meet labor market demands. These visas are sponsored by employers that submit petitions to sponsor foreign professionals for specific positions. The guest workers must generally have a Bachelor’s degree or higher in the relevant fields. While there are approximately 580,000 workers in the U.S. on H-1B visas, they are concentrated in STEM fields. However, the annual cap set by Congress restricts the number of H-1B visa holders who are allowed to come to the U.S., and the cap is far lower than what is demanded by the labor market. With the restrictive immigration policies in the U.S., the nation risks losing out to others such as Canada or the U.K., which have liberalized their immigration systems to attract and retain highly skilled young people.

Problems With the H-1B Visa System

The H-1B system is failing. The visas are three-year work visas that can be renewed once. While the visa is not a path to permanent residency, visa holders can start the process to become lawful permanent residents if they remain in the U.S. after renewing their visas and are sponsored for employment-based green cards by their employers.

However, there are multiple problems with the current H-1B system, including the following:

  • Annual cap of 65,000 visas plus 20,000 additional visas for workers with advanced degrees is far too low to meet demand
  • Change from a first-come, first-serve basis to a lottery approach
  • Annual cap’s continued reductions from the 1990s has resulted in far more petitions than available visas each year
  • STEM fields don’t have enough U.S. workers but can’t secure enough H-1B visas to fill their positions
  • Country-based immigration caps have led to decades-long backlogs for certain nations, including India
  • Offshore outsourcing companies flood the pipeline with petitions, preventing U.S.-based companies from getting the workers they need

Some proposals to change the system incrementally have been introduced. For example, under the former Trump administration, the former president proposed changing the H-1B lottery to a ranking system based on the salaries of candidates. However, this approach would likely result in favoring candidates from high-income countries while preventing younger, skilled workers from more diverse nations from participating. It would also likely preclude younger, recent college graduates from being able to come to the U.S. and work, preventing them from bringing innovation with them. While the former administration proposed this rule, it was struck down by a federal judge.

U.S. Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced a bill in March 2022 to address offshore outsourcing companies. The bill would ban companies with 50 or more employees from hiring more H-1B workers when more than half of their existing employees are H-1B visa holders. However, when restrictions are placed on guest visas, many U.S. companies tend to outsource jobs instead of hiring more U.S. employees. The EAGLE Act would also remove the caps per county on employment-based green card applications, which would help to address the decades-long backlogs in certain countries, including India and China.

The 2017 STAPLE Act would have prioritized work visas for foreign students who graduate from Ph.D. programs at U.S universities, allowing them to remain and work in their fields. Other ideas include auctioning off visa slots to private employers or using a points-based system similar to what Canada uses.

Talk to a New York Immigration Lawyer

Employers who need H-1B visa holders to fill their open positions often are unable to win their petitions and secure the employees they want to bring to the U.S. The experienced immigration lawyers at Oltarsh & Associates help employers submit petitions to help them secure the visas they need. Contact us today to request an appointment at (212) 944-9420.

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