With immigration reform among President Donald Trump's top priorities, updates to the H-1B visa program used by many U.S. technology companies to hire foreign-born skilled workers could be coming soon.
While the need for reforms to the temporary guest-worker program is widely acknowledged, what to change and how to restructure the program has long been up for debate. In pursuing reform, immigration experts said Trump will likely have to reconcile his campaign promises to put American workers first with concerns from business leaders who say the H-1B program is critical to how they hire specialized workers.
"I think you'll probably see some reform, but ... it will have a balance," said Neil Ruiz, executive director of George Washington University Law School’s Center for Law, Economics and Finance, in an interview. "Any changes in the visa system will probably have some clause or test to make sure that they're hiring the best and the brightest and not taking jobs away from Americans."
A leaked draft White House executive order suggests such an approach, ordering the Secretary of Homeland Security to "consider ways to make the process for allocating H-1B visas more efficient and ensure the beneficiaries of the program are the best and the brightest," according to a copy released by news website Vox.
White House Press Secretary Sean Spicer told reporters at a Jan. 30 press briefing that changes to the H-1B program could come as "part of a larger immigration reform effort," handled through executive orders and legislative changes.
Any large-scale overhaul that includes items such as changing the annual caps on visas, would likely require Congressional approval, said Stephen Yale-Loehr, who teaches immigration law at Cornell Law School.
"The devil is always in the details and I think that companies will push back if they think the proposed changes are too onerous. … It will remain to be seen whether a new law will actually be enacted," Yale-Loehr said.
Lawmakers have re-introduced a series of bills in the new Congressional session that aim to reform the program. Several take aim at what the legislators say are abuses of the program by consulting firms, which are issued the largest number of H-1B visas each year. Program critics say that companies such as Infosys Ltd., Tata Consultancy Services Ltd., and WiPro Ltd., use H-1B visas to import low-level IT workers, primarily from India, for strictly temporary positions, paying them at salaries considerably lower than an equivalent American worker.
In 2014, 10 IT consulting firms were issued 25,227 worker visas, representing 30% of the program's 85,000 annual quota, according to research by Ron Hira, a professor at Howard University.
Silicon Valley firms, by contrast, say they use H-1B visas as means to place workers on a path to a green card. To do this, employers sponsor H-1B workers hired into long-term positions for permanent status, which must be approved by the U.S. Labor Department. These certifications happen after the company goes through an intensive search process to determine that they cannot find an equivalent U.S. worker.
Among major U.S. technology companies using the visa program, Microsoft Corp. and its affiliates had 5,029 workers whose H-1B visas were certified in the 2016 fiscal year, according to data from the Labor Department. Alphabet Inc. unit Google Inc. had 4,910 workers with certified visas in this period. Facebook Inc. had 1,169, while Twitter Inc. had 333.
Fwd.us, a lobbying group founded by tech leaders such as Facebook CEO Mark Zuckerberg and Microsoft founder Bill Gates, has called for upping the yearly cap on visas. Echoing a position taken in 2015 by Sen. Orrin Hatch, R-Utah and Sen. Marco Rubio, R-Fla., the group argues that H-1B visas offer a key path to a permanent job and a U.S. green card.
"We need a balanced high-skilled immigration system that will attract the best and brightest from around the world in order to boost innovation, create jobs for native-born workers and strengthen the American middle class. We should harness the talents of foreign-born entrepreneurs and students to benefit our economy and our communities, rather than pushing them to other countries to compete against us," Fwd.us said in an emailed statement about its immigration policy views.
A bill introduced Jan. 24 by Rep. Zoe Lofgren, D-Calif., calls for giving priority to companies willing to pay 200% of a given job's average wage for specialized workers hired through the H-1B visa program. The proposal also aims to further limit the ability of companies from laying off U.S. workers from an equivalent job for which it is hiring a foreign worker.
While businesses might favor some provisions in Lofgren's bill, giving priority to companies willing to pay 200% of a given job's wage based on a survey could create tensions, both within companies and between rival firms jockeying for workers, Yale-Loehr said.
"H-1B has this connotation of being the high-tech visa, but there are many companies and school districts and hospitals that also use H-1B workers," he said. "For example, a school district may use an H-1B to hire a Spanish teacher because they can't find somebody who can speak Spanish who's a U.S. worker. So if you're saying that a Spanish H-1B worker has to get paid $100,000, whereas a regular school teacher gets paid $40,000, that's going to cause a lot of problems internally."
Hal Salzman, a professor of public policy at Rutgers University who studies labor issues in the software and IT industry, called the California Democrat's proposal a "Silicon Valley bill." "You can see it in the sense that it has this nominal reform, mostly just targeted at the Indian offshoring companies. That's more of a U.S. protectionist bill than it is to actually address the problem," he said.
He said other proposals, such as one by Sen. Charles Grassley, R-Iowa, and Sen. Richard Durbin, D-Ill., would do more to revamp the program. Their bill creates what the lawmakers call a "preference system" giving priority to foreign students educated in the U.S., advanced degree holders, people paid a high wage and people with valuable skills.
"Congress created these programs to complement America's high-skilled workforce, not replace it," Grassley said in a Jan. 19 statement.
Another proposal, introduced in January by Rep. Darrell Issa, R-Calif., and Rep. Scott Peters, D-Calif., would crack down on lower salaries by raising the minimum wage for workers under an H-1B visa to $100,000.
One area that lawmakers might look to target for reforms aimed at curbing program abuses would be how many H-1B visas are converted into applications for permanent green cards, said Théo Négri, a software engineer in San Francisco.
Négri, who is French, began examining the Labor Department's data when he was unable to obtain an H-1B visa after being offered a permanent job by a San Francisco company where he worked as an intern. He created the website JobsInTech, which examines salary data and H-1B visa and green card use, broken down by company, to shed more light on how consulting firms make use of the system.
"Google or Microsoft or Facebook, they have a pretty good ratio of green cards and H-1B visas, which means they bring people, and they stay and become part of American society and the economy," Négri said in an interview. "When you look at a company like InfoSys, the ratio is really bad, it's just like they bring people over for a couple of years and then return them back to India."