H-1B Visa Statistics And Anticipated Future Trends
COMMENT
Introduction
One key priority of the Trump administration is to limit
immigration, in part through enacting visa reform, in order to
increase enforcement and encourage policies that benefit US
workers. Consequently, early in April 2017 the US Citizenship and
Immigration Services (USCIS)1 the US Department of
Labour (DOL),2 and the US Department of Justice
(DOJ)3 announced plans for better inter-agency
coordination regarding H-1B visa fraud and abuse and to review the
H-1B programme in more detail.
On April 18 2017 President Trump released an executive order
entitled “Buy American and Hire American”4 in
which the secretary of state, the attorney general, the secretary
of labour and the secretary of homeland security were prompted to
suggest reforms and propose new laws to ensure H-1B visas are
awarded to the most skilled or highest paid beneficiaries. In line
with these developments, USCIS5 and the DOL6
have published reports detailing the existing H-1B trends.
USCIS and DOL reports on H-1B petition filings
Birth country
The vast majority of H-1B petitions filed in 2017 (247,927 out
of the 336,107 or 74%) were for beneficiaries born in India.
Although second, China was significantly below India with 36,362
filed petitions. The Philippines, which ranked third with 3,161
filed petitions, demonstrated a large gap below India and China.
All other top filing countries had petition volumes of between
1,000 and 3,000.
Occupations
Over the past 10 years, the vast majority of H-1B filings have
been for computer and IT-related positions, such as computer
systems analysts (22.1% of positions certified by the DOL),
application software developers (15.8%) and computer programmers
(9.5%).
In its recent policy memo entitled “Rescission of the
December 22, 2000 ‘Guidance memo on H-1B Computer Related
Positions'”, USCIS indicated that based on the definition
of ‘computer programmer’ in the DOL’s Bureau of Labour
Statistics Occupational Outlook Handbook (OOH), it has concluded
that most computer programmer positions would not qualify for H-1B
visas, as many such positions do not require a bachelor’s
degree or higher. Therefore, computer programmer positions may not
rise to the level of a specialty occupation as required by H-1B
visa regulations.7 The memo also stated that other
positions which fall into OOH classifications which generally, but
not always, require a four-year bachelor’s degree may draw
additional inspection for meeting H-1B specialty occupation
standards.
Given the high demand for technology positions, companies will
likely continue to sponsor a large number of foreign workers for
computer-related positions under the H-1B category. However, it is
likely that companies will shift away from computer systems
analysts and computer programmer positions which will likely face a
higher level of scrutiny from USCIS.
Compensation trends
The USCIS report found that the majority of 2017 petitions
(105,827 out of 336,107) were filed with a beneficiary compensation
level between $50,000 and $74,999. The next largest group (99,326)
had levels between $75,000 and $99,000, while the third group
(59,988) had levels between $100,000 and $124,999.
At present, an H-1B beneficiary is exempt from additional
special attestations that apply to H-1B dependent employers if they
receive an annual wage of $60,000 or higher or have a master’s
degree or higher. In January 2017 Representative Darrell Issa
introduced a bill that would eliminate this exemption and require
any company paying an H-1B worker less than $100,000 to show that
they could not hire an US worker for the same job.8
Moreover, Issa’s bill was followed by others, including one by
Representative Zoe Lofgren that would set the H-1B minimum salary
cap even higher.9 While none of these bills have been
enacted into law, it is likely that the minimum salary cap for H-1B
positions will increase in the foreseeable future.
Further, the same USCIS memo pertaining to the computer
programmer classification also concluded that a Level 1 (entry
level) designation may not qualify as a specialty occupation
position. Level 1 wage rates are assigned to job offers for
entry-level employees who have only a basic understanding of the
role and perform tasks that:
- require limited, if any, exercise ofjudgement; and
- provide experience andfamiliarisation with the employer’s methods, practices and
programmes.10
As companies shift away from utilising the Level 1 wage,
compensation trends will rise for H-1B beneficiaries.
Degree trends
According to the USCIS 2017 report, nearly the same percentage
of H-1B petitions were filed for beneficiaries with a
bachelor’s degree or foreign equivalent and those with a
master’s degree or foreign equivalent. This may dispel some
criticism that companies did not file H-1B petitions to obtain the
“best and brightest”. Since the H-1B programme annually
reserves 20,000 places for beneficiaries with master’s degrees
(or their foreign equivalent), companies may be filing more
petitions for beneficiaries with that qualification in order to
increase their chances of approval (as the pool for bachelor’s
level beneficiaries has historically been much higher, while the
65,000 H-1B pool has remained constant, with a few exceptions,
since the Immigration Act 1990). On the other hand, companies
increasingly realise the importance of petitioning for only their
most qualified personnel, especially in light of accusations that
cheaper foreign workers have been replacing perfectly capable but
pricier US workers. Consequently, a steady growth in the number of
master’s level beneficiaries is likely, as companies are
increasingly required to substantiate their beneficiary’s
qualifications over comparable US-based workers.
Other trends
USCIS has also tracked the age of H-1B beneficiaries. Over the
past decade, over half of the beneficiaries have been between 25
and 34 years old. Studies have shown that an increase in younger
foreign-born beneficiaries has significant national economic
benefits. The Organisation for Economic Cooperation and Development
issued a report that younger immigrants tend to be better educated,
have a greater supply of skills and abilities and consequently
contribute more to a nation’s economy through taxes and other
contributions.11 Moreover, as other studies have shown,
with the increasing numbers of retirees, US economic growth depends
on US-based employers’ continuing to attract – and retain
– skilled young workers.12
Comment
Although there have been no substantive changes in the law
regarding the H-1B visas at present, the vociferous rhetoric
demanding visa reform, the introduction of congressional bills
sharply increasing minimum salary caps and USCIS’s announcement
of greater scrutiny of H-1B petitions demonstrate that there is
clearly momentum towards significant revisions of this visa
category.
In light of this, companies will likely shift increasingly
towards beneficiaries with higher educational levels and jobs that
pay Level 2 wages or higher.13 Moreover, government
agency announcements indicate that more scrutiny of all H-1B
petitions, irrespective of beneficiary education level or wage
level, is likely. As such, there is an expected increase in
companies receiving requests for evidence on H-1B petitions.
Consequently, all H-1B petitioning employers should prepare for
these changes by offering a minimum of Level 2 wages for all
prospective beneficiaries, by selecting beneficiaries with higher
educational attainments and anticipating additional scrutiny.
Footnotes
(1)
www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse.
(2)
www.dol.gov/newsroom/releases/eta/eta20170404-0.
(3)
www.justice.gov/opa/pr/justice-department-cautions-employers-seeking-h-1b-visas-not-discriminate-against-us-workers.
(4)
www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american.
(5)
www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/h-1b-2007-2017-trend-tables.pdf.
(6)
www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/H-1B_Selected_Statistics_FY2017_Q1.pdf.
(7)
www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-18003.html.
(8)
https://issa.house.gov/news-room/press-releases/issa-introduces-bill-stop-outsourcing-american-jobs.
(9)
https://lofgren.house.gov/uploadedfiles/high_skilled_bill_sxs_and_analysis_-1-2017__final.pdf.
(10)
www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf.
(11)
www.oecd.org/migration/OECD%20Migration%20Policy%20Debates%20Numero%202.pdf.
(12)
https://fivethirtyeight.com/features/immigrants-are-keeping-america-young-and-the-economy-growing/.
(13)
www.congress.gov/bill/115th-congress/senate-bill/180.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.