The H-1B Visa Program Needs Thoughtful And Urgent Reform

// The H-1B program is in serious trouble and needs immediate reform. Across the country, American businesses rely on the program for foreign high-skilled workers because America simply does not produce enough of them. The program is utilized in every industry and by almost all professions, including IT professionals, doctors, engineers, teachers, life scientists, architects, mental health counselors, and accountants. With only 85,000 visas available annually, USCIS received over 780,000 applications this year. The Department of Homeland Security has confirmed fraudulent applications were filed and is investigating the situation while working to create new regulations. But it is essential to understand that this is not just a regulatory issue. It is something that Congress must address urgently. And those affected by fraud, particularly international students who recently graduated with no visa time remaining, must have a one-time solution while DHS addresses the issue.

My clients are generally small to medium-sized businesses, and those which filed H-1B applications this year lost out. Of the immigration lawyers I have spoken to, most reported a less than 10% selection rate. The majority of the beneficiaries of these cases were likely international students who graduated from U.S. schools. And while the impact of this is not yet visible, it will, in my opinion, be far-reaching.

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First, a little history. Congress created the H-1B program in 1990 and originally capped it at 65,000 available visas. For fiscal years 1999 and 2000, the quota increased to 115,000 from 65,000. The quota increased to 195,000 in fiscal years 2001, 2002, and 2003. After that, the cap returned to 65,000; and in 2004, Congress added 20,000 visas. That is how we got to 85,000.

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The caps are for each fiscal year, which starts on October 1, and H-1B visas can be filed six months in advance of that date. Up until 2018, we lawyers would work several months in advance to file fully prepared applications, 2-to-3 inches thick, to ship on March 31, to reach USCIS on April 1, and cross our fingers. The last year we filed cases in this manner, USCIS received just under 200,000 applications.

During the Trump administration, the H-1B program came under much scrutiny. Among the various misunderstandings of the program, the administration suggested that H-1B workers are paid a lower salary. However, in a recent article,  Stuart Anderson at the National Foundation for American Policy confirms that H-1B employees indeed earn high salaries.

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On the heels of this and other debates, the Trump administration changed the procedure for the application. Instead of filing a complete petition with all the fees, a new electronic registration process was introduced where the employer would pay only $10 to enter the beneficiary’s name into the “lottery” selection. Many were immediately concerned about fraudulent applications, but those concerns were dismissed.

However, it does appear that many companies that wouldn’t necessarily fork out about $5,000 to $8,000 per application (the average combination of lawyer and USCIS filing fees) were happy to try their hands for $10. And that is evident from the number of applications that started grow.

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The new system was implemented on April 1, 2019 (fiscal year 2020). In fiscal years 2021, 2022 and 2023, USCIS received 274,237; 308,613; and 483,927 applications, respectively. In the fiscal year 2024 (filed March 2023), a staggering 780,884 were filed. You can see the dramatic rise in the numbers.

So what is the impact of this situation? When small to medium-size businesses file H-1Bs, it can be a big decision because there is a real cost behind it (both in the attorney and filing fees, but also in the precious bandwidth they must use in order to prepare the filing) that affects their bottom line. They apply because they need the employees and often can’t find qualified Americans to do the job. According to the U.S. Bureau of Labor and Statistics, America has over 10 million job openings. Even though many people have been laid off in the past nine to 12 months, positions still need to be filled. In addition, the Chips and Science Act that passed recently requires highly skilled workers to help fulfill the goal of the law. John Dearie, President of the Center for American Entrepreneurship, discusses this in his recent piece in The Hill.

Vacant positions mean businesses need help getting their work done. And who are these businesses serving? The American consumer. Who is losing out? The American consumer. Ultimately, the American consumer and the American economy are affected.

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Let’s also look at it from the international student perspective. There have been several problems plaguing international students from coming to the United States. There were the outright bans the previous administration had on some countries, then the COVID-19 bans, followed by consulate processing delays. Together, these created fear and the notion that maybe the international students could find another country to go to. And they did; they went to Canada, among other places.

Canada has created policies to attract and retain immigrants, including creating a startup visa. I have personally advocated for immigration reform and a startup visa. And now, I am releasing a new startup visa guidebook for startup companies and international founders so that we can keep the talent in the United States.

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But there is no doubt that with their visa possibilities at stake, international students who now think their futures could be cut short in the U.S. may want to avoid investing their time and money here. International students contribute over $28 billion a year to the American economy, and U.S. schools have already seen a drop in numbers and revenue.

Many students who will miss out on this year’s lottery likely also applied multiple times in prior years and missed out on those, too. They may be at the end of the student visa period and may not be able to afford to remain in school long enough to try again.

What can be done about these students? My colleague Cecilia Esterline at the Niskanen Center suggests a solution — offer every international student affected by the fraudulent lottery this year a one-time extension to their post-graduate optional practical training (OPT) work authorization. Such a gesture would not only help the students individually but also demonstrate a goodwill effort to solve this problem. These are fellow humans, with hopes and dreams of their own, not just numbers in a lottery.

In the meantime, reforming the H-1B program is urgently necessary for America because it has the potential to affect our economic growth. At a minimum, the cap should be increased to meet the demands of the economy. In addition, reasonable measures should be put in place to combat fraud. Both the administration and Congress need to work together to address this problem. The next lottery will be due in March 2024, so we don’t have any time to waste.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at [email protected], connect with her on LinkedIn or follow her on Twitter at @tahminawatson.

 

Topics

H-1B, Immigration, Small Law Firms, Tahmina Watson