Reasons Why A Presidential Proclamation Limiting The Use Of The H-1B Program Would Be Harmful To The U.S.
Based on President Trump’s proclamation of April 22, 2020,
U.S. employers that rely on the H-1B visa program to bring talented
Information Technology (IT) professionals to the U.S. may find it
even harder to bring these workers to the U.S. in the future. While
the proclamation only restricted certain immigrant visa holders
from entering the United States, it also indicated similar
restrictions may be imposed in the future on beneficiaries of
certain nonimmigrant visa programs, including the H-1B program.
This writing will discuss why such a policy of limiting H-1B
nonimmigrant workers from entering the country or imposing
restrictions on the H-1B program is not in the U.S. national
interest.
The Trump Administration has not disclosed the specific measures
it will take to restrict the H-1B program or other nonimmigrant
visa programs. However, there are reports that the Trump
Administration is considering the idea of only allowing H-1B
workers to enter the U.S. if they are being paid a Level 4 wage.
This would be harmful as it would require employers to pay the
top-level wage rate and limit the number of skilled workers that
they would be able to sponsor. A letter sent to President Trump
from four U.S. senators (Tom Cotton, R-Arkansas, Ted Cruz, R-Texas,
Charles Grassley, R-Iowa, and Josh Hawley, R-Missouri) on May 7,
2020 may also provide insight as to the types of restrictions the
Trump Administration may impose. In the letter, the senators urge
the immediate suspension of all nonimmigrant guest worker visas for
sixty (60) days in order to “protect unemployed Americans in
the early stages of economic recovery.” Following the
sixty-day (60) suspension, the senators request President Trump to
suspend certain categories of nonimmigrant guest workers for one
year, or until national unemployment figures return to normal
levels. H-1B workers, L-1 workers, F-1 students pursuing Optional
Practical Training (OPT), as well as other nonimmigrant categories
are mentioned in the letter. It is assumed that any restrictions
would only affect those foreign nationals seeking to enter the
U.S., and not those foreign nationals already present in the U.S.
in valid nonimmigrant status.
The H-1B program has been the center of focus by certain
lawmakers and elements within the Trump Administration for some
time, who claim there is fraud and/or abuse with respect to the use
of the program, and that action is needed to change or limit the
program in order to protect U.S. workers and wages. With the
current high unemployment rate in the U.S., some are advocating the
time to limit or restrict the H-1B program is now. However, this
approach is flawed for the following reasons:
Shortage of Information Technology (IT) Professionals in
the U.S.: The U.S. Department of Labor’s (DOL) Office
of Foreign Labor Certification (OFLC) maintains statistics with
respect to the number of Labor Condition Applications (LCA) filed
with the DOL. Every H-1B petition that is filed with the U.S.
Citizenship and Immigration Services (USCIS) requires a certified
LCA from the DOL. The LCA is an attestation that the U.S. employer
agrees to pay the required wage to the foreign national, has
provided notice to workers of the filing of the LCA, there will not
be an adverse impact to existing employees by hiring an H-1B
worker, along with other attestations. The failure to comply with
these attestations could lead to civil monetary penalties or
criminal liability, or U.S. employer debarment from the H-1B/LCA
program.
DOL’s OFLC’s statistics for the first and second
quarters of the 2020 fiscal year (FY) (October 1, 2019) to
September 30, 2020) reveal that of all the LCAs filed with the DOL,
seven (7) of the top ten (10) occupational categories were for
computer-related occupations. Moreover, the statistics show that of
all the occupational categories listed on the LCAs submitted to the
DOL for this period, 69.9% were for
computer-related occupations. See the following:
(Note: The data also includes LCAs for the H-1B1 and E-3
categories. These are categories similar to the H-1B category, but
for foreign nationals from Chile and Singapore (H-1B1) and
Australia (E-3) and require the same LCA to be submitted with the
petition. The H-1B1 and E-3 categories are categories that do not
have high use, as compared to the H-1B category.)
There are similar statistics for the 2019 FY (October 1, 2018 to
September 1, 2019), which show six (6) of the top ten (10)
occupational categories were for computer-related occupations, and
that 62.5% of all LCAs filed with the DOL were for
computer-related occupations. See the following:
Why does the data reveal the H-1B category (and H-1B1 and E-3
categories) are being used so heavily to sponsor foreign nationals
for computer-related occupations? One answer may be that it is used
so heavily, because there are not enough U.S. workers with the
knowledge and skills to perform the work in these computer-related
occupational categories. Based on the increase in the percentage of
LCAs being filed for computer-related occupations between the 2019
FY and the first two quarters of the 2020 FY, it appears there is
an increase in demand by U.S. companies.
Lack of Computer Science Degrees Conferred by U.S.
Colleges and Universities: Only 34% of the U.S. population
age 25 and older have earned a bachelor’s degree, according to
the U.S. Census Bureau. Within this small percentage of Americans
who have earned a bachelor’s degree, even fewer have a
bachelor’s degree in a computer-related field. This is evident
from statistics from the U.S. Department of Education’s (USDE)
Institute of Education Sciences’ (IES) National Center for
Educational Statistics (NCES). IES is the statistics, research, and
evaluation arm of the U.S Department of Education. The statistics
provided by the IES for the most recent year (2017-2018) in which
data is available indicate that over 1.9 million bachelor’s
degrees were issued by U.S. colleges and universities. Of the over
1.9 million bachelor’s degrees conferred, only 79,598 were in
computer and information sciences. As a result, only 4% of all
bachelor’s degrees conferred were in the computer and
information sciences. Statistics for prior years going back to 1970
show even lower levels of bachelor’s degrees in computer and
information sciences conferred. See the following:
https://nces.ed.gov/programs/digest/d19/tables/dt19_322.10.asp
It is important to note that some of the bachelor’s degrees
conferred by U.S. colleges and universities over the years may have
been to international students. As a result, the number of
bachelor’s degrees conferred in the field of computer and
information sciences by U.S. colleges and universities to U.S.
citizens are certainly less than the statistics represent.
Furthermore, given that individuals retire every year in
computer-related occupational categories, and some graduates may
not pursue a career in a computer-related occupation who have been
issued a bachelor’s degree in a computer and information
sciences field, this further supports the notion that U.S. colleges
and universities are not producing enough Americans with the
knowledge to work in computer-related occupations to meet the needs
of U.S. employers.
The IES also provides statistics on the number of associates
degrees conferred by post-secondary institutions. The statistics
provided by the IES for the most recent year (2017-2018) indicate
that over 1 million associates degrees were issued by U.S.
post-secondary institutions in that year. Of the over 1 million
associates degrees conferred, only 31,479 were in computer and
information sciences. As a result, only three percent (3%) of all
associates degrees conferred by post-secondary institutions are in
computer and information sciences. See the following:
https://nces.ed.gov/programs/digest/d19/tables/dt19_321.10.asp
Statistics for prior years going back to 2007-2008 show, on
average, approximately the same number issued each year in computer
and information sciences.
Low Unemployment Rate for IT Professionals in the U.S.
Currently and Prior to the COVID-19 Pandemic: Statistics
issued by the DOL’s Bureau of Labor Statistics (BLS) reflect
the unemployment rate for computer-related occupations was low
prior to the COVID-19 pandemic and continues to remain low. The
fact the unemployment rate for computer-related occupations
continues to remain low, as compared to other occupational
categories is evidence there is a shortage and/or demand for
individuals with computer science knowledge and skills. According
to BLS statistics, the unemployment rate in April 2019 and April
2020 for computer and mathematical occupations was 2.4% and 4.3%,
respectively. Other occupational categories, which had low
unemployment rates prior to the COVID-19 pandemic now have very
high unemployment rates. For example, food preparation and serving
related occupations went from 4.9% in April 2019 to 41.8% as of
April 2020; personal care and service occupations went from 3.7% in
April 2019 to 39.3% as of April 2020; and production occupations
went from 3.8% in April 2019 to 18.6% as of April 2020. Healthcare
practitioners and technical occupations went from 1.2% in April
2019 to 6.8% as of April 2020, which is surprising given the demand
for healthcare practitioners to treat COVID-19 patients. These
statistics clearly show the high unemployment rate in the U.S. is
due to high unemployment rates in non-computer-related occupations.
Computer-related occupations had one of the lowest unemployment
rates in the U.S. See the following:
https://www.bls.gov/web/empsit/cpseea37.htm
A recently released policy brief from the National Foundation
for American Policy reveals that the unemployment rate for computer
occupations dropped from 3.0% to 2.8% from January 2020 to
April 2020; in the same period, all other occupations saw the
unemployment rate skyrocket from 4.1% to 15%.1 These statistics show the demand for
people with computer science knowledge is unwavering, even in a
pandemic, which has caused massive unemployment in other
occupational categories. As a result, suspending entry of H-1B
nonimmigrants or implementing an excessive wage requirement, which
make the H-1B program unusable for U.S. employers that have a need
for IT professionals would not have a positive impact on reducing
the high unemployment rate in the U.S., improving economic
recovery, and would only cripple efforts to meet U.S. demand for IT
professionals.
Shortage of Professors to Teach Computer Science Courses
at U.S. Colleges and Universities: The Association for
Computing Machinery (ACM), the world’s largest educational and
scientific computing society, which provides resources to advance
computing as a science and a profession, published an article by
Esther Shein entitled, “The CS Teacher Shortage.” The
article indicates there is a shortage of qualified teachers in
secondary education. See the following:
https://cacm.acm.org/magazines/2019/10/239667-the-cs-teacher-shortage/fulltext
Other publications and organization have also noted the shortage
of computer science professors at U.S. colleges and universities.
See the following:
https://www.nytimes.com/2019/01/24/technology/computer-science-courses-college.html
The fact there is a shortage of professors to teach computer
science courses at U.S. colleges and universities is further
evidence of the shortage of people with knowledge of computer
science in the U.S., and the inability to impart the necessary
knowledge to American students in a timely manner.
Lack of Computer Science Education in U.S. High
Schools: Part of the reason there is a shortage of IT
professionals in the U.S. is because there is a lack of education
offered in U.S. grade schools and high schools in computer science.
While the U.S. government and various states are trying to invest
in and promote coursework in the sciences, technology, engineering,
and mathematics (STEM), statistics show only 45% of high schools
teach computer science, according to the 2019 State of Computer
Science Education Equity and Diversity report produced by Code.org
Advocacy Coalition, a movement to make computer science a
fundamental part of K-12 education, the Computer Science Teachers
Association (CSTA), a membership organization that supports the
teaching of computer science, and the Expanding Computer Education
Pathways (ECEP) Alliance, an alliance funded by the U.S. National
Science Foundation (NSF). See the following:
https://advocacy.code.org/2019_state_of_cs.pdf
The fact computer science is not taught on a widespread basis in
U.S. high schools is part of the reason for a lack of IT
professionals in the U.S., and the reason the H-1B program is used
so heavily by U.S. employers to meet their needs.
The only way for U.S. employers to meet their workforce needs is
to address this in the schools and to continue to expand training
in the U.S. of U.S. workers, which takes time and money, bring more
IT professions to the U.S. through nonimmigrant programs, or
outsource the IT work to workers in other parts of the world. Since
the U.S. appears to be lagging behind in STEM education, and the
demand for IT professionals to perform work is immediate, use of
the H-1B program is the best method to meet the needs of U.S.
employers.
Serious Shortage of IT Professionals in the U.S. and
Worldwide in Cybersecurity: The DOL’s BLS has
indicated that employment in the computer and IT occupations is
expected to grow 12 percent annually from 2018 to 2028, much faster
than the average for all occupations.2 The BLS indicates that the demand
for these workers will stem from greater emphasis on cloud
computing, the collection and storage of big data, and
cybersecurity. See the following:
https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm
Besides a growing demand for workers to fill IT occupations in
the U.S. in the future, there are reports that there is perhaps an
even greater global shortage of IT professionals in cybersecurity.
According to the Center for Strategic International Studies (CSIS),
“82% of employers report a shortage of cybersecurity skills,
and that 71% believe the talent gap causes a direct and measurable
damage to their organization.” According to CyberSeek, an
initiative funded by the National Initiative for Cybersecurity
Education (NICE), the United States faced a shortfall of almost
314,000 cybersecurity professionals as of January 2019. To put this
in context, the country’s total employed cybersecurity
workforce is just 716,000. According to data derived from job
postings, the number of unfilled cybersecurity jobs has grown by
more than 50 percent since 2015. By 2022, the global cybersecurity
workforce shortage has been projected to reach upwards of 1.8
million unfilled positions.” See the following:
https://www.csis.org/analysis/cybersecurity-workforce-gap
Other organizations and publications are reporting the same
shortage of IT professionals in the area of cybersecurity:
https://cybersecurityventures.com/jobs/
The shortage of IT professionals in the area of cybersecurity
poses a serious threat to U.S. businesses and the country. There is
a battle for IT talent. As a result, limiting the use of the H-1B
category to bring IT professionals to the U.S. would exacerbate an
already growing problem.
The H-1B Program has a Positive Impact on the U.S.
Economy: Studies on H-1B nonimmigrant workers have shown
that H-1B workers do not have a negative impact on American
workers. The American Immigration Council (AIC) issued a fact sheet
on April 2020 highlighting recent research showing that H-1B
workers contribute significantly to the U.S. economy.3 H-1B workers fill in critical gaps
in many Science, Technology, Engineering, Mathematics (STEM)
occupations, particular in computer science-related occupations, as
shown by data from the Bureau of Labor Statistics (BLS) showing low
unemployment rates for certain occupational categories that have
high use of the H-1B program. In addition, academic studies have
shown that “high-skilled immigrants have the potential for
opening up opportunities for US workers . . . .”4 The AIC report concludes that an
increase in H-1B visas could create an estimated 1.3 million new
jobs and add around $158 billion to the U.S.’s gross domestic
product by 2045. This indicates that limiting the number or
admission of H-1Bs would not only hamper job growth and the
recovery but could put existing US jobs at risk. Moreover, studies
have shown the companies have responded to restrictions on H-1B
visas by increasing employment at their foreign affiliates rather
than expanding operations in the U.S.5 Academic studies have borne this
out, with one in-depth study arguing that “in an increasingly
global world, US restrictions on the hiring of foreign high-skilled
workers are likely to result in greater foreign outsourcing work by
U.S. employers.”6
The H-1B Program is a Positive Force for American
Innovation and Competitiveness: There have been many
studies that have shown the H-1B program is a positive force for
American innovation and competitiveness. A recent study published
in May 2020 indicates that restricting immigration will hinder
America’s ability to compete and innovate.7 In a survey of Harvard Business
School alumni indicated that “immigrants were critical for
developing better products and services, increasing the quality of
innovation, and reaching international customers.”8 The Trump Administration’s
rhetoric and policy have made it increasingly difficult for these
U.S. entrepreneurs to attract highly skilled talent.
High Level of Review, Compliance, and Enforcement
Measures within the H-1B Program: Those critical of the
H-1B program assert there is a high level of fraud and abuse with
the program. This is not accurate. The H-1B program has in place
multiple review, compliance and enforcement mechanisms to protect
U.S. workers and wages, which most of the public is unaware, and
include the following:
- LCA Posting and H-1B Public Access FileRequirements
: Before an H-1B petition is filed with theUSCIS, a U.S. employer must first obtain a certified LCA from the
DOL. Before the LCA is filed with the DOL, the U.S. employer must
post the LCA or notice of the filing of the LCA to workers at the
location where the work is to be performed with information about
the position described on the LCA, including the wages to be paid.
[H-1B workers must be paid at least the higher of the prevailing
wage or actual market wage.] This notice provides an opportunity
for U.S. workers to inquire about the position and file a complaint
with the DOL if they believe there is any violation. In addition, a
U.S. employer is required to make available a file for each LCA
filed with the DOL for public inspection. This H-1B public access
file provides information about the position, and, again, provides
information as to how a person may file a complaint with the DOL,
if he or she believes there is an issue with the H-1B employment,
wages, etc. Other nonimmigrant guest worker programs do not have
these features.
- LCA Fines and Penalties: When LCA violationsare found by DOL’s Wage and Hour Division, back wages and civil
monetary penalties may be imposed on the H-1B employer. In some
cases, criminal penalties and debarment may be imposed. With
respect to civil monetary penalties, the maximum penalty amount per
each violation is the following: $1,928.00 (substantial violations
regarding LCA notice posting, violations pertaining to strikes or
lockouts, etc.) and , $7,846.00 (willful failures pertaining to
wages and working conditions, willful misrepresentation of a
material fact, etc.), and $54,921 (willful violations resulting in
displacement of U.S. worker by the employer 90 days before and
ending 90 days after the filing of an H-1B petition, willful
violations pertaining to working conditions, wages, etc.). See the
following: https://www.dol.gov/agencies/whd/immigration/h1b#cmp.
As indicated, these civil monetary penalties that may be imposed
are per violation, and act as a deterrent against impropriety.
- H-1B Debarment List: The DOL’s Wage andHour Division maintains a list of willful violator employers of the
H-1B/LCA program. https://www.dol.gov/agencies/whd/immigration/h1b/debarment
As you can see from the list, the number of U.S. employers listed
is quite short. There are currently only nine (9) employers listed
out of the many thousands of H-1B sponsors and historic data
indicates similar trends over past years. This indicates that far
less than 1/1000th of sponsors are willful violators.
Further, USCIS found that of the small fraction of companies with
violations (whether willful or not), most had fewer than 25
employees and revenues of less than $10 million.9 U.S. employers comply with the LCA
and other H-1B requirements and appropriately pay their H-1B
workers. If H-1B employers did not, then the list would be much
longer.
- USCIS On-Line Procedure to Report H-1B Fraud andAbuse
: In 2017, the Trump Administration began implementednew ways for the public to report allegations of H-1B fraud and
abuse that now includes an on-line procedure as well. To date,
though, there have been no reports issued or evidence given by
Administration officials of fraud or abuse in the program. See https://www.uscis.gov/report-fraud/combating-fraud-and-abuse-h-1b-visa-program.
- The H-1B Program is a Highly Monitored and Scrutinizedby Multiple U.S. Government Agencies:
The U.S. governmenthas put in place numerous limits on the H-1B visa programs and
monitors the program scrupulously. First, the H-1B program is
capped at a maximum of 65,000 eligible applicants (plus an
additional 20,000 for holders of graduate degrees) and this cap has
been consistent since 2004. Historically, H-1B cap petitions
(excluding extension petitions) have been subjected to a lottery if
the number of petitions exceeded the cap; this is to ensure that no
one petitioner receives preferential treatment. Recently, the USCIS
added a new step to the H-1B petitioning process by creating a
registration program for all applicants that must be completed to
be eligible for the lottery. Moreover, in order to be issued a new
H-1B visa to work in the U.S., multiple government agencies are
involved in the review and approval process, which includes DOL,
USCIS, U.S. Department of State (DOS), and U.S. Customs and Border
Protection (CBP).
A U.S. employer begins the H-1B process by posting the LCA or
notice of the filing of the LCA for public review and, once posted,
files an LCA with the DOL. Once the LCA is certified by the DOL in
approximately ten (10) days, the U.S. employer files an H-1B
petition on behalf of the foreign national with the U.S.
Citizenship and Immigration Services (USCIS). Once the petition is
reviewed by the USCIS and the USCIS is satisfied with the
information contained in the petition, the foreign national applies
for an H-1B visa at a U.S. embassy or consulate. Once the U.S.
embassy completes its review of the visa application and supporting
documentation, the H-1B visa is issued. The foreign national then
take the visa, travels to the U.S., and applies for admission at a
U.S. port of entry, where, once again, a CBP officer reviews the
case. In addition, even after being admitted into the U.S., USCIS
has an H-1B site visit program in which officers appear at the work
location listed on the H-1B petition to verify the H-1B worker is
performing work consistent with what was described in the H-1B
petition and being paid consistent with the required wage listed on
the LCA. Furthermore, DOL’s Wage and Hour Division may conduct
separate investigations, if complaints are received from the USCIS
or the public, etc. in connection with LCA wage or working
condition violations, etc.
The H-1B program is arguably one of the most monitored
nonimmigrant visa programs in the U.S. If there was widespread
fraud and abuse, the number of U.S. employers debarred from the
program and/or listed on the debarment list would swell, and media
reports of wage violations, resulting in the imposition of large
fines, as well as criminal prosecution, would be frequent. The fact
the debarment list is short and media reports of wage violations
are infrequent, suggest 1) the above government agencies are doing
their job, 2) the review and enforcement measures that are in place
are effective, and 3) virtually all, but some smaller U.S.
employers abide by all relevant US laws and regulations for the
H-1B program.
What is needed at this time by U.S. lawmakers and U.S.
Administration officials is a more thoughtful approach — An
in-depth examination of the current unemployment problem in the
U.S., balanced with the needs of the U.S. for skilled
professionals, particularly people with computer science,
engineering, and other specialized knowledge, rather than a blanket
policy to suspend the H-1B program entirely or limit it to only
those who are paid extremely high wages. The U.S. has maintained
its position as a global superpower, because of its technology. The
technology advantage the U.S. has enjoyed is due, in part, to the
flow of IT and other skilled talent into the country, and the H-1B
program is one of the major means used to bring this IT talent to
the U.S. There is a battle for this talent in the world by
countries and businesses. Given the fact the U.S. is not graduating
enough people with computer science or engineering degrees, and the
fact there is a global shortage of IT talent, particularly in
cybersecurity, and given there is a growing need for better, faster
computer systems to operate our businesses; improve our ability to
connect with one another as more of us learn to work remotely;
secure and protect our financial transactions and our personal
information, as well as develop new high-tech products, IT
professionals are needed in the U.S. now more than ever. Limiting
the ability of U.S. employers to bring talented IT professionals to
the U.S. through the H-1B program, on the basis of high
unemployment in non-IT occupations, caused by a global pandemic
that occurs once a century, would be a mistake. It would hurt the
U.S. economic recovery in the long run and stifle the type of
innovation that has helped the U.S. maintain its leading position
in the world.
Footnotes
1. https://nfap.com/wp-content/uploads/2020/05/Analysis-of-Employment-Data-for-Computer-Occupations.NFAP-Policy-Brief.May-2020.pdf
3. “The H-1B Visa Program: A
Primer on the Program and Its Impact on Jobs, Wages, and the
Economy.” American Immigration Council, April 2020:
https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet
4. John Bound, Gaurav Khanna, and
Nicolas Morales. “Understanding the Economic Impact of the
H-1B Program on the United States.” In G.H. Hanson, W.R. Kerr,
and S. Turner, eds. High-Skilled Migration to the United States
and Its Economic Consequences (University of Chicago Press,
2018), p. 162.
5. American Immigration
Council.
6. John Bound, Gaurav Khanna, and
Nicolas Morales,” p. 111.
7. William R. Kerr.
“Immigration Policies Threaten American Competitiveness.”
Harvard Business School, Working Knowledge: May 11, 2020: https://hbswk.hbs.edu/item/immigration-policies-threaten-american-competitiveness
8. Kerr. “Immigration
Policies Threaten American Competitiveness.”
9. Please see U.S. Citizenship
and Immigration Services. H-1B Benefit Fraud & Compliance
Assessment. (Washington, D.C.: USCIS, 2008), p. 14. Available
as AILA Infonet Doc. No. 08100965.
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