Steven Riznyk
March 6, 2017: The H1B visa will not have premium processing available for up to 6 months. The H1B visa is used to cover labour shortages in the area of degreed individuals. In the past, the annual quota was rarely met until the end, whereas now the quota is met on the first day of applications, April 1st. Approximately 3 times as many applicants apply as the number of visas available, which is 85,000. In 2016, a record 236,000 persons applied for the H1 visa.
Halting premium processing means that cases that were decided in 15 days will now take 3-6 months to approve. It won’t change many things in view of the fact that even if someone wins their case, that person is still subject to a lottery. The primary beneficiaries of the H1 visa are tech-related persons from India. In fiscal year 2014, 69.7% of these visas went to persons from India. Many of these people are brought into the US to work for consulting firms and then are sent to various tech companies that pay a premium for their services.
The pros & cons
In order to ascertain a solution to this problem, all aspects of this challenge must be analyzed as it will never be resolved as long as all of the special interests only advocate their own positions, which is natural, but again, does not resolve the bigger problem. Here are some arguments that can be iterated and some questions that require resolve:
1. Although many tech firms may argue that it costs them dearly, it may force them to look to American labour a bit harder. Many of the tech imports from India and China are not bringing skills the US doesn’t have. This would be in line with President Trump’s initiatives to help America. A good outcome, if possible.
2. On the flip side, tech companies may argue they can’t get people fast enough in the US. The question to be answered is: do we have that great a shortage of tech persons in the US?
3. On another note, with premium processing of cases being halted, if the CIS receives, say, 50,000 of the 85,000 applications with a premium processing check in addition to the high filing fees, this would mean a loss of revenue to the CIS of about $61,250,000.
4. One of the controversial subjects in the US lately has been that of the outsourcing of labour. Although we are not taking a position on that issue, we will address some points to consider. If a company outsources their technology to India, China, Russia, Romania, or the Ukraine in order to remain competitive and save money, that is one thing. Even then, people of course complain because they state that jobs are lost in America. True enough.
Regardless of what one thinks of the issue, one can appreciate that it makes business sense. On the other hand, if a tech company imports foreign labour (and most of the positions are 6-figure positions), then not only are we outsourcing, but we are outsourcing at a very high cost. It is one thing to hire someone from India for $25,000 a year. In India, that is a substantial wage. To pay that person $100,000 now, does not make sense. It is outsourcing at an American wage.
5. If the tech sector feels that it makes sense to hire a foreign worker at a premium wage (as they are often hired by consulting firms that make money by marking up their hourly rate), which would be even more than the six figures these people are paid, then what is the problem with the American supply of tech workers?
The common argument is that American workers are not available because they won’t work at the wages that foreign workers will. Well, maybe the wages must be adjusted across the board. Perhaps, the tech sector is overpaid. As in any field, there will be some people who rise above it, and they deserve a higher wage. However, an entire industry cannot be paid at a rate that makes it more feasible to outsource them. It would seem that tech workers would prefer to be paid a fair rate than be unemployed because they are asking too much. After all, there is no point to an education if after that one is stuck with student loans and no job.
6. A tech visa is way overdue. Either a subcategory of the H1 visa should be dedicated to technology or tech should have its own visa (preferred). If the tech sector has its own visa, regulations could be implemented that are tailored to the visa and to the needs of American business. The needs of the tech sector are very different to those in other areas of business and really should have its own considerations implemented after consulting with the tech sector that hires these people. Additionally, this would allow a control over the number of persons hired in the tech sector.
As the H1 visa stands now, it is out of control and is destroying the validity of the H1B visa in that it is preventing people from other industries from entering the US. This has to be placed in perspective. If persons from third world countries are getting trained in technology in a country where the average daily wage for a doctor is $30, it would only make sense they have nothing to lose by applying to work in the US where they can make more than that per hour. It makes sense they would apply, but does it mean we have to hire them?
7. Doctors. Our underserved areas in America require high-level doctors. It is not fair to a person who lives in a remote area not to have access to rapid and effective medical care. A wonderful program we have in place is the J1 program wherein foreign doctors can study in the US (in medical school or a residency program) but have to leave the country for two years before re-entering to work here. They can, however, under certain circumstances have the two-year bar waived if they offer to work for three years in certain underserved areas (this is also called the Conrad 30 Waiver Program).
A lot of lives depend on the J1 program for doctors. If doctors cannot obtain the H1 visa, a lot of people will die or suffer due to a lack of high-level medical care. The people cannot afford to go elsewhere or do not have enough time to travel and obtain assistance. This is one of the reasons the tech sector has to be split off from the H1 visa as it stands, he states (additionally, the J1 section dealing with doctors needs to be severed from the other J1 categories, such as au pairs, camp counselors, and people learning to fly airplanes; it is too complex to be thrown into this general category and requires special care).
There are always at least two sides to an argument and the other side to this one is that the J1 visa provides foreigners the opportunity to take career opportunities from US citizens and residents and is therefore unfair; if that is the case, then a compromise must be reached that works for everyone.
8. Last but not least, the H1 visa is overrun by tech applicants. The H1 was meant for all industries, not one. The problem with it right now, between the lottery system and the randomness of obtaining a valid H1 visa, persons from other industries that are badly needed do not have a chance of working here and helping other industries such as medicine, for example. This cannot go on, because this is the weakest link in the chain. It is here that we have a real need for persons in other industries and day after day when I explain the H1 visa system to people in other industries, they simply tell me they will apply to Canada or elsewhere.
The H1 visa is overdue for a fix, but there are many issues to be addressed. These issues require brainstorming with the business sector so that once again the visa, presently abused in many ways, can restore its integrity and serve the purpose it is meant to serve and help the United States become the leader it has been and will continue being. It will require a delicate balance when it comes to satisfying its many facets.
Steven Riznyk is an immigration lawyer and CEO of San Diego Biz Law