I remember the day when I could apply for my H1-B visa. It was a day after I finished law school. I applied for my Optional Practical Training (OPT), giving me one year to find a job that would sponsor me for a work visa, which would ultimately lead to my permanent residence. I write this post because we are approaching that magical April 1st date, when many dreams would be built, and so many more would be destroyed. Our H1-B system is simply broken, and it is in dire need for an overhaul.
For those of you that do not know about the program, I will give you a brief introduction. The system is built to attract professionals into our workforce. A United States employer would apply for an employee who possesses a Bachelor’s degree to stay on and work for them for six years, the maximum amount of time allowed under the program. Congress has limited the amount of visas available in any given year to 65,000 with an additional 20,000 visas available for candidates with a Master’s degree, which do not count towards the original cap. The employer would apply for a Labor Condition Application (LCA) from the Department of Labor, which should give the employer the magical salary that he should pay the candidate. The employer then submits an application to USCIS, hoping that his candidate’s application makes it in time for a coveted spot in the 65,000 available visas or in the 20,000 visas available for other candidates. In case USCIS receives more applications than available visas, there will be a lottery to select the lucky applicants whose numbers get called.
Among the several problems with this system, two are most dangerous 1) the system does not take into account the real needs of the labor force and 2) the system is so dominated by employers making it unfair to foreign employees.
As to the first problem I mention, the cap Congress has placed has not relation to reality. The fact remains that the government receives more applications than available visas shows that our labor market needs more workers than available visas. Immigration practitioners, and some in Congress, agree that the number of available visas is arbitrary. The new system should take into account our need for more STEM graduates than others. The system should give priority to H-1B applicants who have graduated with STEM degrees over those who do not. I acknowledge that is this system was in place in 2010 when I received my visa, I would not have gotten one. However, the system is more important than the needs of some people. This preference scheme would make the system more favorable to graduates that we need in our system.
The second problem is the most dangerous. The fact is that the LCA can be manipulated by employers. In my case, a holder of three graduate degrees with several years of experience for example, an employer could ask for a candidate who had just graduated from law school to suppress the salary required to abide by federal law. This would mean that a candidate that would make $84,000 a year in the Tampa Bay area as an attorney is being paid $52,000 under the current LCA scheme. This is totally unfair. One possible way to fix this problem is to require the employer to list the real qualifications of the prospective employee and not the desired qualifications used by the employer to suppress the employee’s salary. This would force the employer to pay the actual fair salary mandated by the market.
Another problem with the system is one that is related to the above discussion: the fact that the employer holds all the strings, making the employee totally dependent on his employer and forcing him or her to put up with any abuse. An H1-B employee lives under the threat of deportation every second of every day during their employment. The employer could terminate their employment and they would be forced to return to their country destroying the lives they have established in the United States. One possible solution that has been floated is to give an employee 60 days to find another job to remain in the United States, allowing him some flexibility in case of termination.
Lastly, it is time for Congress to increase the number of H1-B visas so we could compete with other countries, whose immigration processes attract these immigrants. We are simply losing bright minds in this battle for the future of the United States.
Our current system is broken. I hope that this post could be used as a blueprint for its reform.