Like most immigration issues surrounding our next president and his administration, it is difficult to accurately predict what will happen. One of the interesting things about President Trump is that he has consistently stated that he is in favor of employment based immigration although Attorney General-Elect Jeff Sessions is against the H-1 “program” and, for that matter, against all immigration. Fortunately, the Attorney General position has very little to do with the “legal” immigration process so it is doubtful that Mr. Sessions’ views will actually go into effect. The H-1 visa and status is probably one of the most misunderstood immigration categories we have. Contrary to what most people think, it is not a “program” created in the 1990s so that employers could bring cheap labor into the U.S. Because it is so misunderstood, perhaps a summary of its history will be beneficial to you and our readers.
The H-1 non-immigrant category was and is contained in the original Immigration and Nationality Act of 1952. Many people believe it is a new category created in 1990 but it is actually one of the original non-immigrant categories.
The original definition for the H-1 category was that of a “professional”. The immigration act did not actually define what a professional is but did provide several examples such as “engineer” and “teacher”. The common denominator for the H-1 category in 1952 was that at least a bachelor’s degree was required for the job in the U.S. and the H-1 visa applicant had obtained at least a bachelor’s degree or its foreign equivalent. It is important to note that the original H-1 category did not have a “cap” on the number available each year, it did not have a prevailing wage requirement and it did not have a limitation on the number of years a person could maintain H-1 status. In practice, the H-1 was remarkedly open-ended and neither the act nor the implementing regulations provided many guidelines. If a person had a bachelor’s degree or its foreign equivalent and the job in the U.S. required that degree, it was basically up to the Immigration Service or the U.S. Consulate to determine if the H-1 visa and/or status would be granted. Keep in mind that in 1952 and for many years after that, the concept of personal computers and “hi-technology” were in the distant future.
Beginning in the 1970s and into the 1980s, positions such as computer programmers and systems analysts began to become more and more prevalent. More importantly were the H-1 category, many of the most prominent “computer workers” did not have formal education of any kind let alone a bachelor’s degree in computer science or a related field. In fact, many of the major fields of study we have today did note even exist until the last 20 years or so.
This technological revolution caused the Immigration Service and U.S. Consulate a tremendous problem because there was no visa category that fit this type of work except for the H-1 category. And since many of the workers in “hi-tech” did not even have degrees, the definition of “profession” used in the Immigration Act was completely inadequate. To its credit, the government attempted to make H-1 adjudications more flexible and even went so far as to bend the definition of a “professional” to include those who did not have a formal degree. However, this not only caused logical and legal issues but it also highlighted the fact that the H-1 category had almost no restrictions which the government could enforce. This led to an increasing amount of litigation in federal court as companies fought with the Immigration Service to expand the professional definition to include more and more newly created jobs and even entirely new fields of technology.
Fortunately, to some degree the Congress anticipated the continued importance of the developing technology revolution. The Immigration Act of 1990 amended the 1952 Act by creating the current H-1 visa category. This amendment completely eliminated the previous category of “professionals” and replaced it with a much more flexible definition which would encompass not only jobs which require formal degrees but also positions which required expertise which could be obtained without formal education. Although this has become a very limited issue since most if not all technology workers have formal degrees today, it was of great importance in 1990. The 1990 Act also created restrictions which we are all familiar with today.
Most discussions of the H-1 category today do not consider the importance of the 1990 restrictions on H-1 cases filed after 1990. Prior to this amendment, employers could hire as many H-1 workers as they deemed necessary, they were only bound to pay a wage which was vaguely “professional” in nature and could keep the H-1 employees as long as they maintained non-immigrant/temporary intent. After the 1990 amendment, all three of these areas were restricted. Not only were employers required to determine and pay the prevailing wage for a particular position in a particular geographic location, they also were restricted to six years of H-1 status along with an annual cap (of what would become) 175,000.
Contrary to popular opinion, the H-1 category in its 1952 version as well as its 1990 version has never required “highly skilled” expertise. The H-1 also has never required a showing by the employer that there are no qualified U.S. workers for the position but the 1990 amendments did provide the basis for penalties for employers who replaced U.S. workers with H-1 workers unless the prevailing wage standards have been met. This is why opponents of the H-1 category incorrectly assume that U.S. employers desire H-1 workers because they are “cheap labor”. In fact, H-1 employees generally are more expensive than their U.S. worker counterparts. The fact that a limited number of companies in the U.S. have violated the H-1 requirements does not change the fact that the vast majority of employers follow the rules and those companies fully realize that H-1 workers by no means present a cheap alternative to U.S. workers.
It should be noted that President Trump has consistently stated that he is in favor of employment-based immigration especially when it concerns the “best and brightest” coming to the U.S. as a benefit to our economy. As has been proven many times and in many studies, these individuals present a double benefit to the U.S. First, we retain their skills and knowledge which we have either provided through a U.S. university or which they have obtained outside the U.S. But we also deprive other countries of that expertise. One of the worst aspects of our current immigration policy is that foreign students educated in the U.S. find it increasingly difficult to obtain H-1 status since it is now a lottery and therefore are forced to return home or to a third country. Once this happens, the U.S. loses the benefit of that education and it accrues to another country.
The current limitation on H-1 visas and status not only means that other countries get the advantage of a U.S. university education, it also means that college graduates live in another country paying rent, buying a house, buying cars and refrigerators, essentially boosting that economy. Moreover, companies like Microsoft, Intel and many others have no choice but to outsource these technology jobs to other countries, especially India, simply because there are not enough H-1 visas or status available to fill the positions in the U.S. Obviously, those individuals who are hired in India and other countries are not contributing to the consumer economy in the U.S. Although there are many, many aspects of President to be Trump’s plans, it at least appears there is a small glimmer of hope that he believes the legal, employment-based immigration process benefits the U.S. and should be continued if not improved. Unfortunately, we have all learned that President Trump is not the most reliable (in any sense of that word) so we will have to keep a close eye on how the rhetoric from the campaign translates into the reality of running a government.