The Future of the H-1B Visa Process

The H-1B visa process has been an extraordinarily popular program for skilled foreign nationals who want to temporarily live and work in the United States. For the lucky few who obtain an H-1B, it’s also an opportunity to potentially gain permanent residence (i.e., a green card) in the future. The hiring U.S. companies gain unique skill sets generally in short supply through the domestic workforce. 

But the Trump administration has given ambiguous signals on the future of the H-1B visa program. On the one hand, H-1B professionals are exactly the kind of immigrants that President Trump touts in his vision for “merit-based” immigration system. However, the President routinely criticizes the program.

All of this has been extraordinarily confusing for those seeking an H-1B visa and the companies spending thousands of dollars to hire necessary talent. The roles are generally critical positions that contribute to a company’s growth, but recent changes in the program have introduced delays and uncertainty, never good for business. Accordingly, several tech firms are looking to Canada for offices and skilled labor

To forecast expectations for the future of the H-1B process, it’s necessary to analyze the recent past. 

H-1B Participants Get Mixed Signals

There’s no doubt that President Trump has been a staunch opponent of abuses in the H-1B visa program. Lawmakers’ intent when creating the program was to open a door to a foreign workforce only for specialized occupations that could not be satisfied with domestic labor. Critics claim that many companies, particularly in the tech fields, have learned to game the system with the intent of hiring less-expensive foreign talent.

President Trump responded with the “Buy American and Hire American” executive order. This directive has clearly led to more program scrutiny, as it aims to protect U.S. workers in part by rigorously enforcing and administering immigration laws.

Despite the administration’s support for highly-skilled immigration, the executive order and other new rules have only impeded the H-1B process. In fact, the approval percentage of I-129F petitions for H-1Bs has declined for five straight years.

In January, President Trump tweeted his support for the program. He announced improvements, adding, “We want to encourage talented and highly skilled people to pursue career options in the U.S.” 

Later that month, U.S. Citizenship and Immigration Services (USCIS) published a final rule that includes two major changes consistent with the administration’s desire to make the process more efficient and give preference to the most highly skilled applicants.

First, the new rule to begin in 2021 will require that applicants register electronically before submitting the entire application with supporting documents. The change reduces the documentation burden on employers and the H-1B applicant. It also reduces costs for employers seeking H-1B hires.

Those familiar with the mechanics of the H-1B program understand that there are two lotteries. Initially, USCIS selects petitions under the advanced degree exemption. Those not selected then get put into the standard pool. The new rule reverses the order of the lotteries. The relatively simple switch will statistically improve the chances that someone with an advanced degree will be selected for an H-1B visa.

For sponsoring companies, hiring an H-1B employee is an expensive and arduous process. Critics see it as a loophole to hire less expensive foreign employees. Businesses largely participate because the specialized skill set is not widely available within the domestic workforce. The rare few that abuse the program invite more scrutiny to those working with the intended use of the program.

A Possible Future for H-1B Applicants

There’s plenty of evidence to suggest that H-1B petitions will receive increased scrutiny from USCIS in the coming months. Though the H-1B is a valued program to recruit top talent for U.S. employers, it is also under a microscope from an administration that wants to protect U.S. workers. 

It’s likely that demand for H1-B will increase. The American economy has experienced healthy growth and shows signs of possibly continuing on that path. As the economy grows and the employment rate is near all-time highs, there is generally a shortage of highly-skilled labor. Thus, many U.S. companies, particularly thriving tech firms, will be in need of H-1B professionals. At the same time, difficulty obtaining L-1 visas may steer more demand to the H-1B program.

Therefore, it’s critical for sponsoring employers to effectively demonstrate that the H-1B position qualifies as a specialty occupation. In fact, this was the top reason for a Request for Evidence in fiscal year 2018. USCIS wants the sponsoring employer to prove that the position being offered requires specialized skills only available from the foreign national beneficiary. Other common RFE reasons are closely linked to the validity of the position. This is why hiring a law firm with experience in the H-1B space can be instrumental for approvals.

New policies show a preference for advanced degree (master’s and higher) holders. Employers need to carefully analyze the need to pursue candidates with only a bachelor’s degree, making sure they will qualify. H-1B hopefuls may consider continuing their U.S. education in pursuit of an advanced degree.

Go into the process with experience. Utilize an immigration attorney who routinely processes H-1B and other employment-based cases. An expert who has practiced within the space will have a better understanding of how to effectively document the unique requirements of the employer and how the intended employee satisfies those requirements.

If comprehensive immigration reform ever materializes in the Trump era, it is possible that prospective H-1B visa holders will benefit. The H-1B program fits into Trump’s merit-based system and could even see an increase in the statutory caps (although to be fair, candidate Trump also suggested cutting all immigration levels). Those lucky enough to get an H-1B could also receive better compensation. Some congressional proposals have suggested raising the minimum annual salary for H-1B hires from $65,000 to $100,000.

Russ Leimer is the co-founder of CitizenPath.com: online, do-it-yourself immigration services designed by attorneys and backed up with live customer support. CitizenPath simplifies immigration paperwork related to green card applications, renewals, U.S. citizenship and a variety of other services.

23 Responses to “The Future of the H-1B Visa Process”

  1. You perpetuate a myth of a dire shortage of skilled workers. Data from the Census Bureau confirmed that a stunning 3 in 4 Americans with a STEM degree do not hold a job in a STEM field—that’s a pool of more than 11 million Americans with STEM qualifications who lack STEM employment[1]. This is a constantly growing number: Rutgers Professor Hal Salzman, a top national expert on STEM labor markets, estimates that “U.S. colleges produce twice the number of STEM graduates annually as find jobs in those fields.”[2]

    There is, in fact, a glut of STEM trained workers.

    [1] “Census Bureau Reports Majority of STEM College Graduates Do Not Work in STEM Occupations”, Release Number: CB14-130, July 10, 2014, US Census Bureau

    [2] “STEM Grads Are at a Loss”, September 15, 2014, U.S. News

    • Yuriy Koblents-Mishke

      “There are lies, damn lies, and statistics” (C) Mark Twain.

      Did you look beyond titles of the articles? Particularly here:

      https://www.census.gov/dataviz/visualizations/stem/stem-html/

      if you will look, you will realize that what you told is worse than a “Damn lie”. According to the census data, the biggest part of STEM is “S” for Science, i.e. there much more people gets bachelors in sciences than in Mathematics, Computers, Statistics and Engineering together. Unfortunately, most of them gets their degrees not in hard sciences, but in Social Sciences, Psychology, Multidisciplinary Sciences whatever it means, or in the best case in Biological, Environment, Agricultural, and Forestry Sciences.

      Of course, the majors in Psychology, History, Sociology, Gender Studies etc. cannot find a STEM job. Agricultural and Forestry majors predominately will work in family farms or forests. Most of Biology majors will go to Medicine.

      With BS in Physical Sciences, Engineering, Mathematics, Computer, and similar everything is fine: most of them work in the domain, though physicists often turn into EE, and mathematicians into software developers. Or, they work as ‘Quants” in Finances, who essentially are applied mathematicians. It is an interesting and well paid job. Some of the quants are promoted to traders, that is not bad at all.

      • It appears that Yuriy has some trouble interpreting the very graphic he referenced. Either that, or he’s telling a whopper of a lie – engaging in an attempt to divert attention from the real issue. It seems that Yuriy compares the number of graduates in each academic dicipline (Yuriy: “there much more people gets bachelors in sciences than in Mathematics, Computers, Statistics and Engineering together”), instead of concentrating on which occupation group those college grads end up in Moreover, he’s attempting to discredit what I wrote in my original comment, but again – it’s a diversion. My original comment included all of US citizens regardless of when they graduated with their STEM credentials. It’s not clear to me from the graphic whether it includes all of US citizens regardless of graduation date or only the most recent college grads. Remember – the economy doesn’t hinge on 22 year-old college grads.

        Dear readers, take a look at the graphic referenced by Yuriy and hover your pointing device over the label “Computers, mathematics and statistics” under the College Majors section on the left. When you do this, it displays lines that connect the college major with the various occupation groups in which the college grads end up working. Grey lines show the connection to non-STEM occupation groups, and colored (i.e., non-grey) lines show the connection to STEM occupation groups.

        Don’t even bother trying to trace the lines to the specific occupation group. Concentrate on the grey portion closest to the major label and remember, grey is non-STEM. You’ll see that roughly HALF of those college grads that majored in computers, mathematics and statistics end up working in non-stem related fields. It is the same with the college major engineering. It is most strking with physical sciences – the vast majority of those college majors end up in non-STEM related occupations.

        • So, to appease Yuriy, I’ll make an addendum to my OP and state that roughly half, or 1 in 2 people, who majored in computers, mathematics and statistics – fields in which industry claims that there is a DESPERATE labor shortage – don’t hold a job in a STEM field

          • And since Yuriy wants to disregard most of the fields that make up STEM to fit his agenda, those fields should be eliminated from the equation altogether. In which case, 55% of people who majored in computers, mathematics and statistics do not hold a job in computers, mathematics and statistics – fields in which industry claims that there is a DESPERATE labor shortage. Only 6.7% of those who majored in computers, mathematics and statistics work in “Business and financial” so the vast majority are NOT “Quants in Finances” and they are not software developers as Yuriy would like to have you believe.

    • I would like to retract my previous replies to Yuriy and replace it with this one. It appears – in my haste and enthusiasm to defend my good name (I was, after all, accused of pushing a lie – albeit not overtly) – I was clumsy in responding.

      Yuriy wants to disregard some of the academic STEM majors that he feels skews the numbers. So I went back to the site he referenced and took a look at the actual data:

      https://www.census.gov/dataviz/visualizations/stem/stem-html/stem_data_table.xlsx

      The data show the following:

      Of those who majored in Computers, Mathematics and Statistics (1,959,730), 50.81% did not hold a job in a STEM field (i.e., Computer Workers, Mathematicians and Statisticians, Engineers, Life scientists, Physical Scientists, and Social Scientists). Of these college graduates, only 6.72% worked in a Business and financial occupation, which is where I would place a “quant” in finance.

      Of those who majored in Engineering (3,340,430), 50.54% did not hold a job in a STEM field.

      Of those who majored in Physical sciences (1,292,480), 73.6% did not hold a job in a STEM field.

      I cannot reconcile these facts with Yuriy’s statement, “With BS in Physical Sciences, Engineering, Mathematics, Computer, and similar everything is fine: most of them work in the domain.”

      If we want to eliminate those academic disciplines that Yuriy feels shouldn’t be considered, then I believe that the aforementioned data does show that half (as opposed to three quarters) or more of those people who earned degrees in the fields in which industry claims a dire labor shortage exists, do not work in those fields. Apparently, either because there exists no jobs for them so they had to settle for something else, or they found employment in fields that pay more. Half. In fields that supposedly have a “shortage” of workers.

      • And contrary to what Yuriy stated, History, and “Gender Studies” (I wonder if he just made that one up to make his point sound more valid) are not listed as STEM fields in the Census data.

    • This is also the Fact in the IT industry. More Americans can’t find jobs or are offered really low wages while the H1B’s that are coming here make double of what we could make. There is no shortage. Many of my friends are out of jobs. This H1B program is a huge scam to rob Americans out of a job. Also about the part of temporary, Most of them stay and become citizens and bring their elder parents to put on our social services system and drain our SSI/SSD benefits.

      • “This H1B program is a huge scam to rob Americans out of a job.”

        It is a huge scam. It does rob Americans out of jobs. But the job problem is the result, not the purpose, of the Homeslessness-1B visa.

        The overall purpose of the Homeslessness visa program is to is make Leader Pelosi (and others from both parties and their bundlers) an additional 2% a year for their fortunes. This is important – to them. More important than a strong middle class.

        Follow the money. Shareholder returns is the reason why the Homelessness Visa program was founded.

  2. H1B is stealing jobs plain and simple.
    Worked on a floor where 50% were non-US citizens

    All nice people its not about that.
    they make 20k less for the same work

    So force employers to pay THE SAME WAGE FOR THE SAME JOB
    that will end the program.

    • I believe that is what USCIS is trying to do now. They have changed the salary from 60K to 90K with the hopes that that will be a deterrent for importing contractors. But it is still below what the average IT person was making 10 years ago. I do know that USCIS is working to change quite a few things now. The best thing you can do is drop them all emails giving them kudos and tell them your story.

  3. I thought Trump was going stop the H1B visa program. Too bad. Corporations go out of their way to avoid hiring U.S. STEM professionals. They use a process of elimination, laundry list of qualifications, perhaps a 2nd or 3rd shift schedule( 2nd and 3rd shifts schedules are not needed for anything but a manufacturing position, companies will throw that out to various U.S. STEM candidates so that they will decline the opportunity) then they file an LCA (Labor Conditions Application) asserting that hey did everything to try and hire a U.S. candidate. If you have ever had experience like this, you should file a complaint with the EEOC

    • You’re assuming that native-born white men have rights that the State is bound to respect. It’s very clear that we don’t.

      I don’t see why this surprises anyone. NAFTA and giving Most Favored Nation trading status to Communist China 25 years ago gutted the American manufacturing sector and sent fifty million high-paying unionized jobs to the Third World. Government propaganda told us the economy was booming, even as people who work for a living struggled to survive. And with a shrug and a smirk they told American workers “learn to code.”

      And we did.

      And now they’re sending all those jobs to India too.

      How about a 100 year moratorium on work visas of any kind, plus a 1000% tariff on services performed outside the US?

      Does the government have any obligations to us whatsoever under the social contract, or does it not?

      • Make it sound racist so no one will talk about it, nice try !
        You must be a hired P.R. for the cheap labor lobby. I agree with you except I dont think its a “WHITE MAN” thing

        I do think its a third world economy vs. a first world economy thing. In otherwords there is a 70 to 1 ratio between U.S and Indian currencies. U.S corporations prefer to hire Indians because they are cheap and an Indian grad will do almost anything to get out of India. CEOs wils say its because they are so good, if that were true then why dont they bring in German or Japanese STEM professionals ????? Because they cost too much. India is a disaster, they have reached over 1.3 billion in population, they have no centralized power, water or sewage grid and they were the last country to wipe out Polio. India is NOT filled with geniuses like Zuckerberg and Gates would have the average American believe. The PM of India outlined a goal for no public defecation by 2019. What I am saying is Indian STEM professionals need to tend to their country and make it better. Instead they jump at the opportunity to abandon their own country and take jobs from U.S. workers at cut rate salaries. I think we should increase tarrifs, introduce a manadatory 25% fee for every hour charged to an H1B worker AND we should impose 50% remittance tax for money sent home.

        I just want to make it a level playing field. And stop hinting that people are RACIST when they talk about this stuff, it only exposes you and your agenda. And remember, India is NOT a model for social justice

        • Slumdog

          If you cannot bring more to the table in terms of skills than a “third world, low wage, polio infected” Indian, and still demand to be paid more — simply by virtue of having been born in a certain place — sorry, you must be out of your mind.

          The world does not owe you a living. Either bring more to the table in terms of skills and talent, or shut up and be grateful for the food stamps (funded by the Indian tax paying H1-B immigrant).

  4. Folks. Dont be intimidated anyone who tries to insinuate that you are racist for commenting about this stuff. It’s a tactic that corporate relations departments are using to make people feel bad for talking about. They dont want us speak the truth.

  5. It isn’t racist to recognize that the greatest number of H1b visa recipients are from one country and that the program has been gamed and abused. In fact, country of origin is NOT a race – so nice try.
    We should also point out the people holding H1b visas who are from India frequently refuse to associate with US nationals who are female and/or black and/or older – so those ones can and should rightly be accused of sexism, racism and ageism.

  6. Slumdog- Take your own advice, the world does not owe YOU a living simply because you can undercut everyone around you and your low currency exchange advantage.

    Your take on this conversation fully demonstrates what I am talking about. You think you have a right to turn the U.S. economy upside down like you have turned your own economy upside down. I dont think Indians have polio either.

    • Wow you got a lot of hate my friend. I know a lot of H1B friends who are not being paid fairly by their employers. Really skilled kids getting out of college being employed for next to nothing compared to what a similarly skilled resident makes. Not to mention them paying taxes in exchange for no benefits in the country. Let us be fair

  7. systrmBuilder

    I graduated from a computer science theory program at a top ten school. Out of 50 theory majors, I was the only American non Jewish person (maybe there were 8 Jewish americsns and 40 foreign students). People clamoring for citizenship no doubt displace our homegrown technical leaders from grad schools as the job markets are flooded with marginal advanced degree holders. Professors like foreign grad students as they are slaves (100% dependent on the grad stipend). Businesses like them as they are slaves (100% dependent on H1B). The problems start BEFORE graduation.