If you were bright -- and gifted in science and engineering -- the H-1B visa was your ticket to the United States. But maybe not for long.
But the Trump administration injected new uncertainty into the H-1B visa process Monday -- warning employers against discriminating against U.S.-born workers and announcing site visits to companies that employ a high ratio of workers on H-1B visas.
President Trump, who campaigned on an "America First" ideology, has promised to "end forever the use of the H-1B as a cheap labor program" and require companies to prioritize American job applicants -- "no exceptions."
Trump has also said he would issue an executive order to investigate visa abuses. That order has not been signed.
Attorney General Jeff Sessions said while campaigning for Trump that he would consider eliminating H-1B visas altogether -- which would be a major blow to tech companies that rely heavily on foreign workers.
On Monday, the Justice Department warned that hiring practices that discriminate against Americans violate federal law.
"The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers," said Acting Assistant Attorney General Tom Wheeler in a prepared statement. "U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims."
Hours later the Department of Homeland Security announced new steps to combat H-1B visa fraud and abuse. The department's U.S. Citizenship and Immigration Services will make unannounced site visits to companies that have a high ratio of workers on H-1B visas, and those whose foreign workers are outsourced to another company.
The biggest beneficiary of the system, by far, is India, which produces a steady pipeline of workers trained in math, engineering and science. Seventy one percent of H-1B visa recipients came from India in 2015, according to a 2016 report by the U.S. Department of Homeland Security. China comes in second, accounting for nearly 10 percent of H-1B visa recipients.
Immigration experts expect the trend to continue despite the recent spate of high-profile violent attacks on Indians living in the U.S. Two Indian tech workers were shot at a Kansas bar in February by a gunman yelling "Get out of my country.” One of the men died.
India’s dominance of the H-1B visa system is cemented by the country's giant outsourcing firms that submit tens of thousands of applications, increasing their chances of winning the coveted temporary work visas.
Among the top H-1B visa sponsors are Infosys, Tata Consultancy Services, Wipro, and Tech Mahindra Americas -- Indian multinational corporations providing information technology and outsourcing services, according to Myvisajobs.com.
The top 20 global outsourcing firms, including those based in other countries, accounted for about 40 percent of the visas available in 2014, according to Ron Hira, a public policy professor at Howard University specializing in high-skill immigration and the American engineering workforce. His research was cited by the New York Times in its 2015 investigation into H-1B visa abuse.
The outsourcing firms are controversial because they are exempt from the federal requirement that they not displace American workers if they pay H-1B visa holders at least $60,000 a year. That threshold still falls below the market rate for American tech workers.
American tech companies who use workers hired by these firms benefit from the cheaper labor, as well as the automatic loyalty engendered among workers who would otherwise lose their legal status.
The H-1B visas last for three years, and can be renewed once. But workers applying for green cards can renew their visas indefinitely. There is currently a decade-long backlog of Indian green card applicants. Given the tremendous delay, companies have an incentive to hire workers from India, who critics say end up in a system of de facto “indentured servitude.”
“It’s not because Indians are smarter. These companies want more control over their employees. An immigrant worker has few rights and is now stuck with the employer for many years,” said Aman Kapoor, president of Immigration Voice, a nonprofit advocating on behalf of high-skilled foreign workers concerned about the green card backlogs.
Kapoor calls the H-1B visa program a federally sanctioned “long-term employee retention insurance program” because green card applicants cannot change jobs while their applications are pending or they have to re-start their applications.
“If an employee is not going anywhere, the employer will not give salary increases,” he said. As a result, “American workers are discriminated against in the job market and immigrant workers are exploited.”
Employers and the federal government market the H-1B visa program under the slogan of bringing in “the best and the brightest,” he said. But in reality, he said, “the current system is designed to maintain inequality.”
Kapoor himself is a byproduct of the system, having arrived in the United States from India on an H-1B visa for an engineering job in 1997. It took him 12 years to get a green card. Kapoor said he’s now a “proud American citizen” but said he realizes his role in contributing to the current problem. “Knowing what I know today, if I could reverse my life, I would not come back,” he said.
Despite the current political climate and concerns about safety given the recent violence against immigrants, Kapoor said “people will keep coming in hopes of making a better life.”
Advocates of H-1B visa reform have called for replacing the lottery with a system that takes into account salary and skill. Others want to eliminate the per-country green card caps or impose similar caps on the H-1B system to ease the backlog of Indians waiting for permanent residency. Congress is considering bipartisan bills to raise the salary requirements for H-1B visa workers to $100,000 a year.
Still others are lobbying to raise the number of visas issued each year to foreign workers -- currently 65,000 allowed under the cap plus an additional 20,000 for workers with advanced degrees.
Senator Orrin Hatch (R-Utah), chairman of the Senate Republican High-Tech Task Force, wants to increase the number of H-1B visas to between 115,000 to 195,000 a year. In the San Jose Mercury News last week, Hatch argued for giving some H-1B visa workers the freedom to change jobs.
Meanwhile, a new study Monday from New American Economy, a national business coalition founded by former New York mayor, Michael Bloomberg, showed a growing gap between the number of science and engineering jobs available and the number of American workers able to fill those jobs.
In 2010, there were 5.4 job postings in the area of science, technology, engineering and math for every unemployed worker in these fields, the study says. By 2015, such job postings outnumbered unemployed workers in these fields by a factor of almost 17 to 1.
“These numbers are staggering,” said Jeremy Robbins, executive director of New American Economy. “Most of these major tech companies literally have thousands of jobs posted on their websites today that they can’t fill.”
But many economists are skeptical that a gap exists between the number of tech jobs and the number of available workers.
Guy Berger, LinkedIn economist, said the gap for some science and engineering jobs is more acute in Los Angeles than it is in the San Francisco Bay Area. Engineers looking for work may be better off moving. Companies themselves could mitigate some of the gap by offering higher wages, he said.
Berger said he’s skeptical of “the idea there’s an immutable shortage you can’t possibly solve” without hiring foreign workers. “In a lot of cases, you can pay people more.”
Peter Cappelli, an economist and professor of management at The Wharton School at the University of Pennsylvania, Trump’s alma mater, said it’s “absolutely not true” that there is a shortage of workers to fill U.S. science and engineering jobs.
“Most of the H-1B visas don’t go to the super smarties,” Cappelli said. “It’s typically for mid-level IT folks. They’re not the highest paid jobs.”
Companies have an incentive to want to expand the H-1B visa program, he said. Foreign workers are “really, really glad to be here in a way a typical American worker is not,” Cappelli said. “If you could hire a U.S. worker and make sure they can’t quit on you, boy, they would be a ton more valuable.”
The future of the H-1B program really becomes a “lobbying question,” he said. “Whose interest is going to be served at whose expense?”