It is not easy to get an H1B visa to work in the United States. U.S. employers have to jump through significant hoops trying to hire these foreign skilled workers. Unfortunately, the process is likely to get even tougher. With a presidential election looming and the outcome far from clear, the Trump administration is taking steps to introduce two “fast-track” regulations before the end of the year to make it harder for foreign skilled workers to qualify for H-1B visas and harder for U.S. companies to afford to hire them. The first regulation would narrow the definition of a “specialty occupation” and narrow the number of occupations that would qualify. The second regulation would significantly increase the required wage rates employers would have to pay and make it more costly for employers to hire foreign skilled workers.
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Hire American Policy
In April 2017, the Buy American and Hire American Presidential Executive Order sought to block foreign workers from undercutting American employees by ostensibly working for lower wages. The administration’s argument was that these changes will save jobs for Americans and address the high unemployment rate caused by Covid-19. So with that first declaration, the U.S. Customs and Immigration Service (USCIS) started clamping down to deny H-1B applicants where they could find reasons to do so.
The problem with such a policy is its potential for unintended consequences, especially in the face of an unprecedented event like the coronavirus pandemic. Why make it difficult for American employers to hire foreign workers if they cannot find them in America? Isn’t the whole point of the program to help employers find them because they are not here? Take the healthcare area of work, for example. Presumably these workers are critical not just to the employers, but to the well being of the entire U.S. and its economy. Indeed, the U.S. needs foreign skilled workers to maintain its leadership in many of the industries that use this visa category. So there was a cost associated with saving American jobs, that may have actually cost American jobs. Yet the president doubled down on the policy.
Are These Policy Restrictions Going Too Far?
In fact, many of the largest tech companies in the U.S. have slammed the anti-H1B visa proclamations as going too far, arguing they have damaged the economy. Recently, after filing a lawsuit by the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation and others, challenging the federal restrictions, Thomas J. Donohue, the CEO of the U.S. Chamber of Commerce, issued the following statement:
“Our lawsuit seeks to overturn these sweeping and unlawful immigration restrictions that are an unequivocal ‘not welcome’ sign to … critical workers who help drive the American economy. Left in place, these restrictions will push investment abroad, inhibit economic growth, and reduce job creation.”
Modern technology is enabling more employees to work remotely than ever before. Indeed, Covid-19 has forced a large percentage of the workforce in the U.S. to work remotely. A high percentage of workers from this workforce are from the highly skilled industries dependent on H-1B visa workers. For these employers it is becoming increasingly unnecessary to go through the arduous process of bringing these highly skilled workers to the U.S. The anti-H1B visa policy actually makes it more likely for American employers to contract work out to these foreign skilled workers overseas and at lower pay rates. Indeed, Britta Glennon, an assistant professor at the Wharton School of Business has conducted research that found that “policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.”
In short, these restrictive immigration regulations are likely to move high-skilled and high-paying jobs offshore. They will decrease, not increase, employment opportunities for American workers and leave them scrambling for low-paying, unskilled jobs with very little room for upward mobility. Glennon’s research identifies that “restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they could also be causing the U.S.’s innovative capacity to fall behind.” These are alarming unintended consequences that need to be avoided.
Indeed, the administration would be wise to follow the carpenter’s rule to “measure twice, before cutting once.”
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