It isn’t even Christmas in July yet, but the Biden Administration is making a list and checking it twice. Too bad they want to reward the naughty, not the nice. Reading the smoke signals, it appears Biden is shelving the Trump era rule tying H-1B visa allocation to the petitions offering the highest wages, rather than the current random lottery system. The idea behind the Trump Rule was to make sure H-1B visas did not undercut wages of American tech workers. Of course, the tech companies opposed that change, and now Biden is taking their side.
What have the tech companies done to deserve such a reward? Well, let’s see… They have been laying off thousands of American workers. Simultaneously, they are breaking records for H-1B visa applications. They are also settling significant numbers of lawsuits against them for discriminating against American workers. The tragic stories of forcing Americans to train their cheaper replacements are, sadly, routine. Also, do not forget wage theft is just as much a problem for H-1B workers as it is across the rest of the nonimmigrant workforce.
Under the current system, the government first accepts all of the applications for H-1B visas. They receive far more applications than the current numerical cap can accommodate. At this point, the government runs a randomized lottery. There is no consideration about the importance of the job or the pay of the applicants in this process. Even staffing companies that contract out foreign workers to other employers are allowed to participate, even though they have no bona fide job offer (banning third party employers from participation is a no-brainer reform). How does this make sense? We are supposedly offering H-1B visas for employers that cannot find American workers. We are told these are “high-skilled” and “valuable” employees. So why would we not consider the pay of these employees in the allocation? The amount an employer is willing to pay for an employee is an objective demonstration of both need and value. At least it would be if the tech companies were not seeking cheaper foreign substitutes to replace American workers.
In this situation, it makes logical sense that the visas should go to the companies offering the highest wage. This certainly would help the foreign workers seeking admission. It would boost their pay and incentivize that pay to keep rising, assuming the employers really are desperate to hire them. Allocating the H-1B visas on the basis of highest wage offered would also assist the American high-skilled workforce by eliminating the option of tech employers seeking the lowest bidder in the visa market. Additionally, allocating visas by wage offered would provide a level of certainty the current random lottery fails to provide to employers. Those employers paying on the low end of the spectrum would know where they stood and have a verifiable way to increase their odds. Finally, adding the certainty for employers would likely reduce some of the overabundance of applications, thus reducing workloads for overwhelmed government agencies. That is a win/win/win/win.
As for the employers using the H-1B program for cheaper labor, well, they would be shut out. If the employers are paying fair market value to foreign workers, what does this matter? If they are using H-1B visas to undercut American wages, then why would we care if they are harmed by this policy? Why would the Federal government allow companies to use our immigration system to underpay foreign workers and shut out American workers?
Yet, somehow, here we are. The United States immigration system is being used to harm all workers to the benefit of unscrupulous employers. In this case, the tech industry seems flooded with the kind of employers that fire Americans, underpay foreign workers, and cry about false labor shortages. This whole industry is seemingly built on immigration fraud and worker exploitation. It is curious that the supposedly pro-worker Biden Administration is killing a simple rule change that could empower workers and bring unscrupulous employers to heel. If Biden wants to “build back, better”, he should start with making an immigration system that works for his citizens.
JARED CULVER is a Legal Analyst for NumbersUSA
