H-1B: An Ally, Not An Enemy

What is an “H-1B”? The newest Hummer model? Maybe code for a cataclysmic event, like Y2K? A new, virulent virus? The H-1B I know is none of these but, rather, a visa allowing certain well-educated foreign nationals to work in the United States. Those who know, generally, what an H-1B is are likely to be unaware of the labyrinth of regulations the must be navigated in order to get, and keep, an H-1B.

The H-1B visa is commonly requested by employers for prospective employees with bachelor’s degrees. The prospective employee must intend to work in the field in which he earned his degree; so, for example, someone with a degree in computer science would not be approved for an H-1B visa to work as a physician’s assistant. The prospective employee’s background will be reviewed prior to issuance of the H-1B to ensure that he is not a bad actor and is, therefore, admissible to the United States. Although the prospective employee’s academic credentials and background are critical considerations in determining eligibility for the H-1B, it is the U.S. employer who does most of the work involved in getting, and maintaining, H-1B status for the employee.

Here is a typical case. An employer, Bob, wants to hire a young man who graduated first in his class at Metro, where he studied computer science. This young man, Wilfred, is Indonesian and interned with Bob as part of his academic program. Wilfred proved to be an extremely competent intern, quick to catch on to new concepts and popular with Bob’s other employees. When Wilfred graduated from Metro in May, Bob offered him a job. Wilfred told Bob that he would need an H-1B visa to work in the U.S., and Bob assured Wilfred that the company would do whatever was necessary to assist in getting the H-1B.

From an immigration attorney, Bob learned that a petition for the H-1B would need to be filed with Immigration Service, along with proof that Wilfred had earned the required degree. That part sounded easy enough to Bob. Next, Bob was told that he would need to pay Wilfred at least the “prevailing wage” for the position. This, too, sounded okay since Bob appreciated his employees and knew that the salaries he paid were competitive. Then, Bob was told that Wilfred would not be able to start work until October 1 because visas allocated for the year had all been assigned and would not be available again until October 1. Then Bob was told that, in addition to paying attorney fees, his company would be responsible for paying filing fees in excess of $1500. And, of course, there was no guarantee that the H-1B would be approved.

Bob thought carefully about whether this made sense for his small company. Hiring another student in Wilfred’s class who was already authorized to work in the U.S. would be much faster and easier. But he wanted Wilfred, and Wilfred wanted the job, so Bob kept asking questions.

If worked slowed down, Bob asked, could he lay off Wilfred and re-hire him at a later date, when the workload increased? The answer was “no,” that H-1B workers needed to be paid even if work slowed down. But surely, Bob thought, he could terminate Wilfred if work dried up altogether. The answer was “yes,” but the company would have to pay for Wilfred’s return to Indonesia if he was terminated before the 3-year H-1B stay expired.

Bob thought about it. Hiring an H-1B worker was a huge commitment of time and money for an employee who would work for him for 3 years, the term of the H-1B. The visa could be declined, and Bob would be exposing his small company to liability if any details relating to compliance with H-1B requirements were overlooked. But Bob knew that Wilfred was exceptional and decided to proceed with the H-1B.

Many espouse the view that U.S. employers misuse the H-1B by hiring foreign workers when U.S. workers are available. While there are, and always will be, employers who cheat, most who hire H-1B workers do so because they outshine their American counterparts and not because the process is easier and cheaper than hiring U.S. workers.

In the past few years, Congress has dramatically reduced the number of H-1B visas that are granted each year. As a result, many of the top college students, like Wilfred, are not able to remain in the U.S. to work following graduation. So, doesn’t that mean that homegrown folks get those jobs? It does, but at what cost?

Our country loses out on the world’s top talent, which creates a cascade of negative economic effects: our major companies lose their competitive edge in the world market, productivity declines, jobs are lost. Increasing the number of H-1B visas would facilitate a change in the current perception of the United States as a country hostile to foreign workers to being a country that welcomes the best and the brightest. The United States needs and deserves the world’s best human capital, and acquiring it should be an essential component of any plan to stimulate the U.S. economy.