Common Sense H-1B Reform

Over the last couple of years, the trend in the media has been to lament that we train foreign students in "advanced" STEM degrees here, and then send them home to compete against us, due to a shortage of H-1B visas. The fact that H-1B pundits are careful to use the word "advanced" instead of postgraduate has not escaped me.  In addition to the H-1B educational requirement being set too low, another source of H-1B lobbyist whining is the highly publicized H-1B lottery, which is likely caused by foreign outsourcing firms who suffer no financial penalty when attempting to game the system.

Adjust the H-1B educational eligibility requirement, not the yearly cap.

The logical thing to do is to raise the educational requirement for H-1B to a postgraduate degree.  According to the FY 2012, H-1B data, eliminating bachelors degree eligibility would free up 50% of new H-1B visas.

Data presented by Dr. Ron Hira, shows that legitimate US employers draw heavily from the postgraduate population, while offshore outsourcing firms favor undergraduate degrees.  Additionally, the offshore outsourcing firms have the unlimited Intra-company L-1 visa available to them, once the candidate has one year of experience with the firm.

By raising the H-1B educational requirement, citizen and permanent resident candidates would have a better chance at bachelors degree and associate degree level positions, which are the targeted positions to be moved offshore by the offshore outsourcing firms.  Restated, 50% more H-1B visas would be available to legitimate US employers.

According to the Institute of International Education, there were 311,204 foreign students enrolled in postgraduate programs in the United States in 2012-13.  This might seem like a large number until we factor in the Doctoral programs are four years, and masters and professional degree probably average two years. So the number likely to graduate in 2013 was roughly 126,157 for all declared and undeclared majors (not just STEM). Additionally, some students may not want to stay in the US and other might not graduate, but the 126,157 number is still less than the total number of H-1B initial employment approvals in FY 2012 (136,890),  

Work experience authorizations 

The IIE data also discloses that there were 94,919 international students gaining work experience on the Optional Practical Training (OPT), an unlimited cap, 12 month work permit with a 17 month extension available for STEM graduates.  While working on student visas, these employees are exempt from Social Security and Medicare tax, putting entry level citizens and permanent residents at a huge financial  disadvantage.

H-1B lottery and oversubscription

A second point of contention is the H-1B lottery, that is triggered when the number of applications exceed the 85,000 visa cap.  As reported by the Center for Immigration Studies, this phenomena is primarily caused by companies attempting to game the system.  Due to the fact that H-1B application fees are refunded to the applicant employer (unlike most other visa fees) there is no financial penalty for oversubscribing the H-1B category.

Gaming the number of applications

H-1B dependent employers, employers with a high percentage of H-1B staff, are eligible for something called a multi-slot  Labor Condition Application (LCA).  The multi-slot LCA allows, primarily outsourcing, firms to apply for an unlimited amount of H-1B visa on a single application -- without naming the candidate or providing credential for USCIS/DOL review.

The ability to apply for hundreds of H-1B visas, on a single application, with the knowledge that application fees will be refunded encourages these companies to oversubscribe the visa category, hoping that their consultant (possibly the same candidate) will be placed at the firms who could not attain the visa at a higher premium.  (I.e., if Microsoft doesn't win the lottery on a single LCA, the outsourcing firm, with the un-named H-1B LCAs, can provide the candidate as a consultant.)

Employment based (EB-3) permanent immigration oversubscription

Due to the dual-intent rules available in both the H-1B and L-1 temporary visas, employers can sponsor these employees for permanent residence.  Published figures estimate that there is a backlog of 500,000 workers in the EB-3 (bachelors degree level) employment based permanent residency program.  Due to country of origin limits, these immigrants are primarily from China and India and are on yearly AC21 extensions, taking them well beyond the 5 and 6 year limits of the L-1 and H-1B visas.

As such, bachelor degree permanent residency applicants from non-backlogged countries will gain permanent residency ahead of those on AC21 extension.  Raising the educational requirement for H-1B will reduce the intake of bachelors degree permanent residency applicants and vacant slots can be recovered and distributed to address the AC21 backlog.