H-1B visa changes may miss mark

Modifications are designed to benefit U.S. workers, but startups could be unwitting victim.
Kim Clarke, immigration attorney at Varnum

When employers resume requesting H-1B visas for temporary foreign workers in specialty occupations this spring, they might have to rethink their wages.

The U.S. Citizenship and Immigration Services (USCIS) recently modified the H-1B visa to prioritize wages to incentivize employers to offer higher salaries, and/or petition for higher-skilled positions, and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.

“The H-1B temporary visa program has been exploited and abused by employers primarily seeking to fill entry-level positions and reduce overall business costs,” said USCIS Deputy Director for Policy Joseph Edlow. “The current H-1B random selection process makes it difficult for businesses to plan their hiring, fails to leverage the program to compete for the best and brightest international workforce and has predominately resulted in the annual influx of foreign labor placed in low-wage positions at the expense of U.S. workers.”

Prior to the modification, the selection process for H-1B visas was through a lottery system. Kim Clarke, an immigration attorney at Grand Rapids-based Varnum, said the selection process was random in which anyone could apply and a maximum of 85,000 applicants would be selected.

“They would first randomly select 20,000 from all of the applications that had a master’s degree and then when that selection was done, they would put all those (remaining) master’s degree applications in the general pool and select another 65,000,” she said.

The specialty occupations that qualify for an H-1B visa include doctors, scientists, researchers, IT professionals and engineers.

Clarke said the notion behind the government’s modification is that it will protect American workers because American employers would have to pay more to get visas for foreign workers and also pay them a higher wage. To avoid the excess expenses, companies might be more apt to turn to American workers instead, she said.

However, Clarke said employers are facing a much bigger challenge with demand.

“What we find with our clients is not a wage issue because they would pay more than what they offer foreign workers if they could find American workers to fill positions,” she said. “We find that our clients are unable to find American workers who are qualified for their positions and that is why they seek H-1B visas. 

“It costs about $25,000 from beginning to end to employ a foreign worker over an American worker, so this is not something that companies do because it is easier, or they can pay less. They have to pay a significant amount of money to go through the (selection) process (to employ a foreign worker.)”

To develop American students to fill in specialty occupation positions, companies have been working with schools to place an emphasis on science, technology, engineering and mathematics (STEM), according to Clarke.

In the past, Clarke said there was a demand for physical therapists, but American schools are producing students who now are meeting the demand.

While the modification seeks to help American employers to find American employees who can fill specialty occupations by increasing wages, there is another set of people in the American economy that might be negatively impacted. 

“There is a significant chance that startups will be impacted because they cannot pay higher wages when they are developing their business and getting their funding together,” Clarke said. “That is where a lot of innovation comes from, a lot of new products, new ideas. I don’t think it is in the best interest (of the United States) to cripple those startup operations through not being able to get the talent they need to operate.”

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