Sunday, November 13, 2016

What President Trump Can Do About H-1B?

What President Trump Can Do About H-1B?

The Secretary of Labor needs to consider available data.

Subjects: Trump, H-1B, Secretary of Labor, Computer occupations, unemployment

After a few days reviewing the law concerning H-1B and L-1 visas, I'm finding that the foreign labor arbitrage problem can be addressed within current law and resolved by the Secretary of Labor, by practicing due diligence with respect to Labor Certifications.

Following the election of President Trump, we should become very interested in his choice for Secretary of Labor, Secretary of State and the Attorney General (Jeff Sessions). Insisting that the Secretary of Labor forces employers to prove that there is no equally qualified candidate would be an equitable method to determine difference between a uniquely qualified non-immigrant and career destroying foreign labor arbitrage.
U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part II › § 1182(a)
(5) Labor certification and qualifications for certain immigrants
(A) Labor certification
(i) In general Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
(ii) Certain aliens subject to special rule For purposes of clause (i)(I), an alien described in this clause is an alien who—
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
How is the Secretary of Labor certifying that there are not sufficient equally qualified workers available in the case of § 1182?

 Apparently, for an H-1B, all that is required is a bachelor's degree in an ill-defined definition known as "Specialty occupations" for certification. However, in the case of 1182(a)(5)(A)(i)(I), if the foreign worker's only credential is a bachelor's degree, then the foreign worker is inadmissible when a person with a bachelor's degree is available for the position.

Even in the case of an "exempt" foreign candidate, if there is an equally qualified U.S. candidate, § 1182 would prevail and the certification denied; exempt H-1B status only exempts the employer from the additional attestation regulations in the CFR.

The circular referencing in § 1182 would certainly allow the Secretary of Labor to rightly decline many labor certification applications, especially where an a more qualified American is being replaced.

Note: I cannot find any verbiage within CFR › Title 20 › Chapter V › Part 655 › Subpart H that nullifies the certification requirements found in § 1182.   "Exempt" status is specifically for prevailing wage determinations and exempting "dependent" employers from additional attestations. Even if the alien worker is paid the $60,000 or possesses a master's degree,  if an equally qualified American holds the job, the alien is inadmissible.

H-1B initial employment (Computer related)

The most recent data we have for H-1B is from October 2013 (FY 2014).

Even as of November 2016, the most recently published H-1B Characteristics report (FY2014) is for nonimmigrants who were authorized for employment on October 1, 2013. Reminding the reader that the total H-1B cap is 85,000, the FY2014 report shows us that 80,877 initial approvals were granted in Computer-related occupations.
Total H-1B approvals
The total number of H-1B initial employment approvals for FY2014 (October 1, 2013) was 124,326, government, non-profit and related educational employers are exempt from the numerical caps. Of these 124,326 initial approvals:

Aliens outside U.S. = 68,390
Aliens inside the U.S. = 55,936

The exemptions for government, non-profit and advanced degrees, found in 8 USC 1184(g)(5)(A)-(C) only exempts these petitioners from the numeric caps, nothing in the law exempts these individuals from the admissibility requirement found in 1182(a)(5)(A)(i)(I).


Q3 2013 unemployment in Computer occupations was 155,000. These are computer professionals actively seeking work. Keep in mind that if the computer professional's last employment was as a barrister, (s)he is no longer counted as an unemployed computer professional.
"Table 3. Employed and experienced unemployed persons by detailed occupation and class of worker, Quarter III 2013 (Source: Current Population Survey)"

Employment growth

Employment growth in Computer occupation for 2013 was 116,620. (80,877 new H-1B consumed (69.4%) of employment growth in the occupation.)
Note that the following Computer occupations do not require a bachelors degree.
Occupational growth
15-1150 Computer Support Specialists = 12,750
15-1134 Web Developers = 9,880
This should reduce the H-1B eligible employment growth to 93,990, H-1B consumed 80.6% of the eligible Computer occupations
Source: U.S. Department of Labor Statistics.

College degree production

Degree production for U.S. citizens and permanent residents in Computer And Information Sciences and Support Services was 101,407 in 2013.

2013 Degrees/Awards Conferred: Computer And Information Sciences and Support Services
U.S. Citizens and Permanent Residents
Doctorate Degree-Research/Scholarship = 849
Doctorate Degree-Other = 21
Master's Degrees = 12,725
Bachelor's Degrees = 49,204
Associate's Degrees = 38,608

Total Degrees = 101,407
Degrees/Awards Conferred by Race (NCES population of institutions)

The damage

Keep in mind that the following does not include other visa programs like the L-1, the TN (NAFTA), the O-1 and the EB permanent residence visa.

H-1B Computer related initial employment = 80,877
College Degrees (U.S. citizens and Perm residents) = 101,407
Computer occupations unemployed = 155,000

Subtotal = 337,284

Employment growth (subtract) = 116,620
New unemployment level = 220,664

The H-1B program increased unemployment levels by 65,664 in FY 2014. The average unemployment benefit nationally is $300 per week and since new college graduates are not reporting difficulty being placed, we presume the newly unemployed are those being displaced. If this is the case, the misuse of the H-1B is costing state unemployment programs $19,699,200.00 per week, or $512,179,200.00 per year, if extended to the full 26 weeks.

An additional 66,700 L-1 visas were issued in 2013, however these statistics are not delineated by occupation.
Source: U.S. Department of State.

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