As attempts at H-1B reform make their way through the legislative process, opponents recently shot down a proposal that would (in part) raise salaries for visa workers stateside. Whether H-1B can be reformed is still up for debate, but the real opportunity for reform may lie with existing workers and the companies they represent.
If you’re not familiar with H-1B, here’s a quick primer: the program is a way for U.S.-based companies to hire people from other parts of the world on a work visa. Those companies must pay foreign visa holders the same wage a domestic worker would earn. The H-1B program is based on a lottery system (which has a hard cap), so there’s always a chance that sponsoring someone will go nowhere.
But the process isn’t always so linear. Darin Herle is a Canadian with an H-1B visa working in the United States; previously he held a TN-1 visa, which was introduced with NAFTA as a way for Canadians to get preferential treatment for work in the U.S.
When he left school, Herle went to work for a startup in Silicon Valley. “Once I was comfortably working there, I started talking to the company’s lawyers about an H1-B,” he said. “There were a number of other foreign nationals working there and we were generally on the same track (TN-1 or L1, moving to H1 and then the Green Card process).”
Intel bought his company out the next year for $550 million. “My H-1B application was prepped and ready for submission before the cap was hit,” he added. “During the acquisition, the Intel legal team came in to help handle a number of H-1B, TN, L1 and Labor certifications that were happening in the company.”
Despite all that legal complexity, Herle describes the visa process as fairly straightforward from his end: “I provided a resume, degrees and supporting documentation. It was approved shortly thereafter and I started down the lengthy green card process.”
H1-B and Your Company
Richard Green, partner at Carothers, DiSante & Freudenberger LLP, chairs the firm’s immigration practices group. He tells Dice that employers may be scared off by the cost of an H-1B (“thousands of dollars” per application) and that “an employer will also need to retain counsel to prepare and file the petition.”
The H-1B program can have an effect on workplace morale if not responsibly used. Green notes that, when companies replace entire units of domestic workers with H-1B visa holders, “the presence of H-1 workers can breed resentment in the workplace.” However, he added, “If a company hires one or two [H-1B] workers it would be difficult to see how a workforce would be negatively affected.”
According to attorney Jason Finkelman, most companies utilize the H-1B program “to hire employees who can meet their hyper-specialized needs.” He says this is especially critical in STEM, where “employers are currently in need of more high-skilled professionals than the U.S. educational system can produce.”
Finkelman believes that finding an H-1B sponsorship isn’t impossible. “The biggest challenge in seeking opportunities is overcoming the issues that employers might have with the cost, visa documentation, and limited supply of H-1B visas that employers don’t want to deal with,” he said.
Education May Prove Key to Reform
Some of the reasoning behind H-1B makes sense for employers. In their thinking, if they just can’t find a good candidate domestically, looking abroad becomes enticing. If supply and demand of the existing U.S.-based workforce encourages people to ask for more money than the job market will competitively pay, looking outside the U.S. can be considered due diligence.
But do employers have a duty to skill employees up, rather than scour the globe for talent? Several avenues for continuing education exist: not only traditional colleges and universities, but also a growing number of bootcamps and other highly specialized programs.
For example, Treehouse has a dedicated program for businesses looking to ‘upskill’ employees; it also offers ‘techdegrees’ for longer-form course work. Coursera lets employers create specialized programs for their workforce, which can be tailored to their specific needs.
Education doesn’t have to be so drawn out, either. Employers can send their tech staff away to bootcamps from entities such as Big Nerd Ranch for a crash course in a new language. Even learn-as-you-go programs such as Ray Wenderlich are an opportunity that some employers may be overlooking.
While there are a lot of considerations with any of these options (time away from a desk and cost are paramount), they potentially stand as viable alternatives to the ‘we can’t find skilled workers’ argument. Some may argue that an employee could ‘upskill’ on an employer’s dime and transition out of the company, but that may prove an acceptable risk if it means more skilled workers on the payroll. (Whether or not they receive training, the tech industry does experience a relatively high degree of turnover, according to some studies.)
H1-B Needs Reform From the Inside
There are right ways to handle hiring someone via H-1B. But there are wrong ways, too.
Southern California Edison’s (SCE) upheaval of its IT department in early 2015 stands as the perfect example of how not to handle the H-1B visa process. In that instance, the company replaced roughly 500 of its staff with H-1B workers from India. Speaking to Computer World, SCE employees said the visa program “was supposed to be for projects and jobs that American workers could not fill,” adding, “not one of these jobs being filled by India was a job that an Edison employee wasn’t already performing.”
Those kinds of incendiary tales give H-1B a bad name, and lead to calls for reform. While many argue reform is necessary, lawmakers can’t seem to find common ground on which to argue for or against it.
Much of the proposed reform tends to be a bit limited, anyway. A recent proposal that died in Congressional committee would have raised the required minimum income of H-1B workers to $100,000 from $60,000 and eliminated a requirement that applicants hold a Master’s degree. It didn’t specify the income structure; it’s possible that a company could pay an H-1B worker $70,000 in salary while deferring the remaining $30,000 as an easily attainable bonus. Critics argued that the proposal would have still put older domestic workers, who tend to draw high salaries, at risk of having their jobs eliminated.
When the spirit of H-1B is compromised, domestic employees often pay the price. That’s why critics of the current system are demanding that companies adhere to a stricter set of self-governed rules to make sure their existing workforce is protected and contributing to the greater needs of a company.
In many instances, it’s impossible for outsiders to know how many (if any) employees were offered continuing education as part of a shift to a different team or department before the company hired an H-1B worker; but it’s hard to think every employee would have shot the option down. Whatever the future holds, companies involved in the H-1B program may have to end up showing more of their work (so to speak) to prove they tried to actively hire domestically before looking abroad.