H-1B visa changes loom for tech firms, other employers

Trump proposes major reforms to program for skilled foreign workers

In Silicon Valley and around the world, millions will be watching what happens with the H-1B visa this year as the administration of President Donald Trump works on reforms to bring the program for skilled foreign workers in line with his “Buy American and Hire American” executive order.

Major changes have been promised, from altering the types of jobs eligible for H-1B visas to re-

quiring that companies seek U.S. workers first. But with other proposals for reforming the controversial visa already delayed, it’s not clear when the administration may make its next move.

Even as the tech industry, which relies heavily on the H-1B program, complains that more visas are being denied, those who favor a tougher approach to immigration are hoping for a more aggressive push.

“This is what Trump ran on,” said John Miano, a lawyer for the Center for Immigration Studies, which advocates for reduced immigration. “Here it is two years later and we haven’t seen anything. People are getting antsy: ‘ What did we elect this guy to do?’ There is great concern.”

The H-1B has become a flashpoint in America’s immigration debate, with the tech industry pushing for an expansion of the annual 85,000 cap on new visas and critics pointing to reported abuses of a program they say allows companies to replace Americans with cheaper foreign labor.

The tech industry has said it already is experiencing the impact of changes launched in 2018.

A “premium processing” service that allowed companies to pay extra to expedite many H-1B applications has been suspended until Feb. 19. Reviewers for U.S. Citizenship and Immigration Services can now deny visa applications without first asking for more information, a move that’s expected to further increase H-1B denials. In a crackdown aimed at outsourcing firms, employers applying for H-1B visas must now submit a form disclosing whether the worker will be contracted out to another company. And last month, the Department of Homeland Security proposed a change to the H-1B lottery that would give preference to highly educated applicants with degrees from U.S. universities.

Those moves, however, are far less significant than changes the Trump administration has announced but not yet implemented, said Sarah Pierce, a policy analyst at the Migration Policy Institute.

“Other than increasing scrutiny, especially for individuals who are at third-party work sites, they haven’t done much to actually change the program,” she said.

That will change if the administration follows through on plans to ban the spouses of H-1B holders from working, change the types of jobs eligible for the H-1B, or require all companies to offer jobs to Americans before applying for skilled foreign workers — a move that would likely require approval from Congress, she added.

A lobbying group representing tech giants including Apple, Google, Facebook, Oracle, Amazon and Microsoft has already expressed concern about the Trump administration’s plans for the H-1B in 2019. “As the administration considers sweeping changes to U. S. immigration policies, the tech industry hopes that it does so in a way that keeps America competitive, and able to retain and attract the best and brightest workers across the world,” said Jose Castaneda, spokesman for the Information Technology Industry Council, which advocates for an increase in the number of H-1B visas.

“At a time when governments across the globe are attempting to lure the next generation of innovators with smart immigration policies, we urge the Trump Administration to advance policies that allow tech companies to do the same.”

The council has already expressed strong concern about a Homeland Security proposal to strip work authorization from the estimated 100,000 spouses of H-1B workers. Since 2015, those spouses have been allowed to work under H- 4 visas. Homeland Security has delayed issuing the work ban rule three times and Pierce said it’s not clear whether the department will take action on the H- 4 anytime soon. “They haven’t been very public about why it’s been so delayed,” she said.

Details about many of the proposed changes are scarce, with hints coming primarily from additions to the federal government’s official calendar. By the end of January, according to one filing, Homeland Security plans to issue a new rule revising the definition of the “specialty occupations” in which H-1B holders can work “to increase focus on obtaining the best and the brightest foreign nationals.” In the same filing, the agency also promised it would “revise the definition of employment and employer- employee relationship to better protect U. S. workers and wages” and would “propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.” Homeland Security did not respond to requests for comment about its plans.

Those revisions, already delayed twice, would have significant impact on employers — and could be delayed again, said the Migration Policy Institute’s Pierce.

“It’s going to be a big bomb once they actually drop it,” Pierce said.

But Miano of the Center for Immigration Studies is not optimistic about effective H-1B reform, noting that Trump’s appointment of Chad Wolf, a former lobbyist for Indian outsourcing firms, as Homeland Security chief of staff does not bode well. “It increasingly looks like the swamp has won and is taking over,” he said.

Miano said increased scrutiny of H-1B visas is not enough. Neither is the proposed change giving preference to foreign students graduating from American colleges, he said. That might give a few thousand foreign graduates of U. S. schools a better shot at H-1B jobs, but “just because they’re a U.S. graduate doesn’t mean they’ll be highly skilled,” said Miano, who has argued before Congress that the H-1B should be strictly a guest-worker permit and not a path to a green card.

Miano is representing former Southern California Edison workers who have sued Homeland Security, alleging that allowing H- 4 holders to work violates U.S. worker protections. He said he expected that case — moved forward in December by a federal circuit court — to be resolved before the department finalizes its new work rules for H- 4 holders. If a court decision goes his way, he said, the H- 4 work authorization would be declared illegal.