The Myth of H-1B Workers

On the front page of the April 19, 2017 edition of the Dallas Morning News the following title appeared: Trump Takes Aim at the H-1B Visa Program for Highly Skilled Foreign Workers. President Trump did issue an Executive Order regarding the H-1 visa category. However, the H-1 is not, and never has been, a category solely for “highly-skilled workers.”

U.S. immigration law is controlled by the Immigration and Nationality Act of 1952, as amended (INA). Section 101(a)(15)(H)(i) of the INA originally referred to “members of the professions” which was not defined by the statute. Examples were provided, however, such as engineer and teacher. The federal agencies charged with enforcing the INA, the Immigration Service and Department of State, defined H-1 jobs as those which required a Bachelor’s degree in a professional or technical field. At that time, and until 1990, the H-1 had no minimum salary requirement, no attestations to protect U.S. workers, and no annual cap. All that was needed for an H-1 visa and/or status was a job that required a Bachelor’s degree and a foreign worker who had the appropriate degree. Some degrees would not work such as degrees in fine arts: painting, music, dance, etc., because those positions do not require degrees. Those degree holders could only, and still can only, obtain H-1 status if they teach.

Beginning in the late 1970s, and increasing through the 1980s, the field of technology began to grow exponentially. Initially, the problem with H-1s was that some schools did not even have degrees in computer science and many of the “hi-tech” workers either dropped out of school or never attended. This began more than a decade of Federal Court litigation with the Immigration Service about the “equivalent” work which could take the place of a Bachelor’s degree. This led to the next issue with the H-1, which was when foreign workers did have Computer Science or Engineering degrees, the Service made distinctions between “hi-tech” jobs as to which of them required a “member of the professions” and which did not. The Department of Labor joined the fray in the processing of Labor Certification applications, with the Certifying Office in Dallas. Benjamin Bustos, making the famous (some said dubious) analogy that systems analysts lay the railroad track (and are “professional”) but programmers only steer the train (and are not “professional”)

Congress ended the disputes/litigation in 1990, with several further amendments in the early 1990s. The Immigration Act of 1990 amended the INA by adding a specific definition for the H-1 category: the job must be in a “specialty occupation.” Specifically, the “specialty occupation” is defined in Section 214(i)(1), INA, as an occupation that requires “theoretical and practical application of a body of highly specialized knowledge, and, attainment of a Bachelor’s or higher degree in the specific specialty (or its equivalent) as minimum ¬†for entry into the occupation.” Importantly, neither the Immigration Service nor Department of State, nor any administrative court or Federal court, has referred to an H-1 employee as “highly skilled.” And although the phrase “highly specialized knowledge” appears in the definition, the overall definition has been interpreted to mean the job must require simply a Bachelor’s degree in that specific field. For example, a position that requires a general business degree will not qualify for an H-1; a job that requires a Bachelor’s degree in business with an accounting concentration probably would qualify. Note also that this definition includes equivalent work experience in lieu of a degree.

The 1990 Act also, for the first time, severely restricted use of the H-1. An annual “cap” was put in place, which is currently 85,000. The employer was and is required to make several attestations about protecting U.S. workers; a minimum salary/prevailing wage is required to be obtained from the Department of Labor; companies that have more H-1 employees than non-H-1 employees must test the labor market and show no U.S. workers are qualified and available. These developments demonstrate the H-1 is not a “program” created out of thin air. It is an integral part of the INA and has been since 1952. If anything, the 1990 amendments made it much more difficult and expensive for employers to use this visa category. But every year far more than 85,000 H-1 petitions are filed.

The media, politicians and anti-immigrant groups focus on the employers who have abused the system, even though they are a small minority of H-1 users. There is no question that employers who pay substandard wages to H-1 employees and/or replace U.S. workers with them are in violation of the INA as well as committing criminal acts. And the now USCIS and ICE are getting better at investigation and prosecuting those employers who abuse the system. But that does not mean the H-1 category itself is necessarily flawed.

What has made enforcement more difficult, and the public’s perception of H-1 to turn negative, is the changing nature of employment itself. Many large and medium-sized companies no longer need in-house programmers and systems analysts (or even accountants, marketing professionals, etc.) as certain types of work become more project based. And increased specialization plays a part in this also. This has led to a grey area where a company lays off a number of full-time, long-term employees because they do not need those services on a permanent basis. Further, those employees generally have a specific skill set which may not be on the cutting edge or in a new field that has just developed. Rather than keep “employees”, the company turns to contractors who can work on a project basis, bring different skill sets, and leave when the project ends. Adding to the negative perception is the fact that many of the “contracted workers” are foreign workers in H-1 status. Although there are several reasons for this, and paying substandard wages is the rare exception not the rule, the main reason for a lack of U.S. workers doing this is the amount of travel for an extended time. These projects may take a year, or three years. Or they may take three months. And the work may be in several states. The point is that few U.S. workers wish to live that way.

The forgoing are all very complicated issues which I do not mean to gloss over. Hopefully, the Immigration Service and Department of Labor will use the Executive Order to provide greater protection for U.S. workers while also recognizing that foreign H-1 workers are an asset to the U.S. economy. And, in conclusion, the H-1 is available for any job which requires a Bachelor’s degree in a professional or technical field. “Highly skilled” workers may qualify for an H-1 visa, but not all H-1 visas are given to the “highly skilled.” Nor are they required to be.