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Possible Reform Of The H-1B Visa Program

Technology workers authorized to work in the United States are generally issued visas under the category H-1B. The H-1B visa program admits 65,000 non-student workers and 20,000 graduate student workers for specialty occupations requiring a college education. The program is likely to undergo dramatic changes under President-elect Donald Trump’s incoming administration.

Last year, Senator Jeff Sessions, proposed legislation to make H-1B visas less available to large outsourcing companies. Senator Sessions is now one of Trump’s candidates for Attorney General.

Every April the United States Citizenship & Immigration Services (USCIS) holds a lottery from which 65,000 applicants are selected for as many positions within the qualified companies. Recipients are chosen at random. In 2016 USCIS received 236,000 H-1B petitions for the 85,000 visas, meaning that nearly two thirds of the applicant pool did not receive the visa.

For years, the tech industry has lobbied to expand the H-1B visa program. While companies have generally benefitted from the program, critics point out that some companies have used the program to cut labor costs unfairly. The program’s largest beneficiary, for example, is a company called Infosys, which is based in India. Infosys’ business model depends on its ability to send lower-paid workers to the U.S. on the H-1B visa, and the company generally refrains from assisting its workers to obtain green cards in the U.S. Similarly, Disney has used the H-1B visa program to terminate in-house IT employees and replace them with lower paid international contractors. By contrast, Google pays its H-1B employees a relatively high salary and assists them in applying for green cards. Regardless of their labor policies, companies like Infosys, Disney, and Google have the most to gain from the H-1B visa program, since they rely heavily on international skilled labor.

Despite the program’s popularity among large companies, in recent years the H-1B has come under intense scrutiny following allegations of fraud. A federal investigation found that Infosys had directed international workers to lie about the position they would fill and had improperly employed workers holding a business travel visa instead of the correct H-1B visa. Since the Justice Department’s 2013 $34 million settlement with Infosys over the fraud, Senate Democrats and Republicans launched a bi-partisan effort to investigate other companies’ use of the program. Individual senators from both parties, including Democratic primary presidential candidate Bernie Sanders, have made criticism of the H-1B program an important component of their political platforms, asserting the program benefits big companies at the expense of immigrant and U.S. workers. Proponents of reforming the H-1B program advocate replacing the lottery with a system by which visas are awarded to workers for companies offering the highest paying jobs. Senator Sessions’ 2015 bill included a similar proposal that would prevent companies from using the program to acquire cheap labor.

If you need assistance filing a visa application or believe you are being taken advantage of due to your immigration status, please call the experienced immigration law attorneys at Bretz & Coven, LLP at (212) 267-2555.

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