Based on President Trump's proclamation of April 22, 2020,

U.S. employers that rely on the H-1B visa program to bring talented

Information Technology (IT) professionals to the U.S. may find it

even harder to bring these workers to the U.S. in the future. While

the proclamation only restricted certain immigrant visa holders

from entering the United States, it also indicated similar

restrictions may be imposed in the future on beneficiaries of

certain nonimmigrant visa programs, including the H-1B program.

This writing will discuss why such a policy of limiting H-1B

nonimmigrant workers from entering the country or imposing

restrictions on the H-1B program is not in the U.S. national

interest.

The Trump Administration has not disclosed the specific measures

it will take to restrict the H-1B program or other nonimmigrant

visa programs. However, there are reports that the Trump

Administration is considering the idea of only allowing H-1B

workers to enter the U.S. if they are being paid a Level 4 wage.

This would be harmful as it would require employers to pay the

top-level wage rate and limit the number of skilled workers that

they would be able to sponsor. A letter sent to President Trump

from four U.S. senators (Tom Cotton, R-Arkansas, Ted Cruz, R-Texas,

Charles Grassley, R-Iowa, and Josh Hawley, R-Missouri) on May 7,

2020 may also provide insight as to the types of restrictions the

Trump Administration may impose. In the letter, the senators urge

the immediate suspension of all nonimmigrant guest worker visas for

sixty (60) days in order to “protect unemployed Americans in

the early stages of economic recovery.” Following the

sixty-day (60) suspension, the senators request President Trump to

suspend certain categories of nonimmigrant guest workers for one

year, or until national unemployment figures return to normal

levels. H-1B workers, L-1 workers, F-1 students pursuing Optional

Practical Training (OPT), as well as other nonimmigrant categories

are mentioned in the letter. It is assumed that any restrictions

would only affect those foreign nationals seeking to enter the

U.S., and not those foreign nationals already present in the U.S.

in valid nonimmigrant status.

The H-1B program has been the center of focus by certain

lawmakers and elements within the Trump Administration for some

time, who claim there is fraud and/or abuse with respect to the use

of the program, and that action is needed to change or limit the

program in order to protect U.S. workers and wages. With the

current high unemployment rate in the U.S., some are advocating the

time to limit or restrict the H-1B program is now. However, this

approach is flawed for the following reasons:

Shortage of Information Technology (IT) Professionals in

the U.S.: The U.S. Department of Labor's (DOL) Office

of Foreign Labor Certification (OFLC) maintains statistics with

respect to the number of Labor Condition Applications (LCA) filed

with the DOL. Every H-1B petition that is filed with the U.S.

Citizenship and Immigration Services (USCIS) requires a certified

LCA from the DOL. The LCA is an attestation that the U.S. employer

agrees to pay the required wage to the foreign national, has

provided notice to workers of the filing of the LCA, there will not

be an adverse impact to existing employees by hiring an H-1B

worker, along with other attestations. The failure to comply with

these attestations could lead to civil monetary penalties or

criminal liability, or U.S. employer debarment from the H-1B/LCA

program.

DOL's OFLC's statistics for the first and second

quarters of the 2020 fiscal year (FY) (October 1, 2019) to

September 30, 2020) reveal that of all the LCAs filed with the DOL,

seven (7) of the top ten (10) occupational categories were for

computer-related occupations. Moreover, the statistics show that of

all the occupational categories listed on the LCAs submitted to the

DOL for this period, 69.9% were for

computer-related occupations. See the following:

https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2020/H-1B_H-1B1_E-3_Selected_Statistics_FY2020_Q2.pdf

(Note: The data also includes LCAs for the H-1B1 and E-3

categories. These are categories similar to the H-1B category, but

for foreign nationals from Chile and Singapore (H-1B1) and

Australia (E-3) and require the same LCA to be submitted with the

petition. The H-1B1 and E-3 categories are categories that do not

have high use, as compared to the H-1B category.)

There are similar statistics for the 2019 FY (October 1, 2018 to

September 1, 2019), which show six (6) of the top ten (10)

occupational categories were for computer-related occupations, and

that 62.5% of all LCAs filed with the DOL were for

computer-related occupations. See the following:

https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2019/H-1B_Selected_Statistics_FY2019_Q4.pdf

Why does the data reveal the H-1B category (and H-1B1 and E-3

categories) are being used so heavily to sponsor foreign nationals

for computer-related occupations? One answer may be that it is used

so heavily, because there are not enough U.S. workers with the

knowledge and skills to perform the work in these computer-related

occupational categories. Based on the increase in the percentage of

LCAs being filed for computer-related occupations between the 2019

FY and the first two quarters of the 2020 FY, it appears there is

an increase in demand by U.S. companies.

Lack of Computer Science Degrees Conferred by U.S.

Colleges and Universities: Only 34% of the U.S. population

age 25 and older have earned a bachelor's degree, according to

the U.S. Census Bureau. Within this small percentage of Americans

who have earned a bachelor's degree, even fewer have a

bachelor's degree in a computer-related field. This is evident

from statistics from the U.S. Department of Education's (USDE)

Institute of Education Sciences' (IES) National Center for

Educational Statistics (NCES). IES is the statistics, research, and

evaluation arm of the U.S Department of Education. The statistics

provided by the IES for the most recent year (2017-2018) in which

data is available indicate that over 1.9 million bachelor's

degrees were issued by U.S. colleges and universities. Of the over

1.9 million bachelor's degrees conferred, only 79,598 were in

computer and information sciences. As a result, only 4% of all

bachelor's degrees conferred were in the computer and

information sciences. Statistics for prior years going back to 1970

show even lower levels of bachelor's degrees in computer and

information sciences conferred. See the following:

https://nces.ed.gov/programs/digest/d19/tables/dt19_322.10.asp

It is important to note that some of the bachelor's degrees

conferred by U.S. colleges and universities over the years may have

been to international students. As a result, the number of

bachelor's degrees conferred in the field of computer and

information sciences by U.S. colleges and universities to U.S.

citizens are certainly less than the statistics represent.

Furthermore, given that individuals retire every year in

computer-related occupational categories, and some graduates may

not pursue a career in a computer-related occupation who have been

issued a bachelor's degree in a computer and information

sciences field, this further supports the notion that U.S. colleges

and universities are not producing enough Americans with the

knowledge to work in computer-related occupations to meet the needs

of U.S. employers.

The IES also provides statistics on the number of associates

degrees conferred by post-secondary institutions. The statistics

provided by the IES for the most recent year (2017-2018) indicate

that over 1 million associates degrees were issued by U.S.

post-secondary institutions in that year. Of the over 1 million

associates degrees conferred, only 31,479 were in computer and

information sciences. As a result, only three percent (3%) of all

associates degrees conferred by post-secondary institutions are in

computer and information sciences. See the following:

https://nces.ed.gov/programs/digest/d19/tables/dt19_321.10.asp

Statistics for prior years going back to 2007-2008 show, on

average, approximately the same number issued each year in computer

and information sciences.

Low Unemployment Rate for IT Professionals in the U.S.

Currently and Prior to the COVID-19 Pandemic: Statistics

issued by the DOL's Bureau of Labor Statistics (BLS) reflect

the unemployment rate for computer-related occupations was low

prior to the COVID-19 pandemic and continues to remain low. The

fact the unemployment rate for computer-related occupations

continues to remain low, as compared to other occupational

categories is evidence there is a shortage and/or demand for

individuals with computer science knowledge and skills. According

to BLS statistics, the unemployment rate in April 2019 and April

2020 for computer and mathematical occupations was 2.4% and 4.3%,

respectively. Other occupational categories, which had low

unemployment rates prior to the COVID-19 pandemic now have very

high unemployment rates. For example, food preparation and serving

related occupations went from 4.9% in April 2019 to 41.8% as of

April 2020; personal care and service occupations went from 3.7% in

April 2019 to 39.3% as of April 2020; and production occupations

went from 3.8% in April 2019 to 18.6% as of April 2020. Healthcare

practitioners and technical occupations went from 1.2% in April

2019 to 6.8% as of April 2020, which is surprising given the demand

for healthcare practitioners to treat COVID-19 patients. These

statistics clearly show the high unemployment rate in the U.S. is

due to high unemployment rates in non-computer-related occupations.

Computer-related occupations had one of the lowest unemployment

rates in the U.S. See the following:

https://www.bls.gov/web/empsit/cpseea37.htm

A recently released policy brief from the National Foundation

for American Policy reveals that the unemployment rate for computer

occupations dropped from 3.0% to 2.8% from January 2020 to

April 2020; in the same period, all other occupations saw the

unemployment rate skyrocket from 4.1% to 15%.1 These statistics show the demand for

people with computer science knowledge is unwavering, even in a

pandemic, which has caused massive unemployment in other

occupational categories. As a result, suspending entry of H-1B

nonimmigrants or implementing an excessive wage requirement, which

make the H-1B program unusable for U.S. employers that have a need

for IT professionals would not have a positive impact on reducing

the high unemployment rate in the U.S., improving economic

recovery, and would only cripple efforts to meet U.S. demand for IT

professionals.

Shortage of Professors to Teach Computer Science Courses

at U.S. Colleges and Universities: The Association for

Computing Machinery (ACM), the world's largest educational and

scientific computing society, which provides resources to advance

computing as a science and a profession, published an article by

Esther Shein entitled, “The CS Teacher Shortage.” The

article indicates there is a shortage of qualified teachers in

secondary education. See the following:

https://cacm.acm.org/magazines/2019/10/239667-the-cs-teacher-shortage/fulltext

Other publications and organization have also noted the shortage

of computer science professors at U.S. colleges and universities.

See the following:

https://www.insidehighered.com/news/2018/05/09/no-clear-solution-nationwide-shortage-computer-science-professors

https://www.nytimes.com/2019/01/24/technology/computer-science-courses-college.html

https://www.pennlive.com/opinion/2018/11/a-shortage-of-computer-science-teachers-is-putting-the-workforce-at-risk-opinion.html

The fact there is a shortage of professors to teach computer

science courses at U.S. colleges and universities is further

evidence of the shortage of people with knowledge of computer

science in the U.S., and the inability to impart the necessary

knowledge to American students in a timely manner.

Lack of Computer Science Education in U.S. High

Schools: Part of the reason there is a shortage of IT

professionals in the U.S. is because there is a lack of education

offered in U.S. grade schools and high schools in computer science.

While the U.S. government and various states are trying to invest

in and promote coursework in the sciences, technology, engineering,

and mathematics (STEM), statistics show only 45% of high schools

teach computer science, according to the 2019 State of Computer

Science Education Equity and Diversity report produced by Code.org

Advocacy Coalition, a movement to make computer science a

fundamental part of K-12 education, the Computer Science Teachers

Association (CSTA), a membership organization that supports the

teaching of computer science, and the Expanding Computer Education

Pathways (ECEP) Alliance, an alliance funded by the U.S. National

Science Foundation (NSF). See the following:

https://advocacy.code.org/2019_state_of_cs.pdf

The fact computer science is not taught on a widespread basis in

U.S. high schools is part of the reason for a lack of IT

professionals in the U.S., and the reason the H-1B program is used

so heavily by U.S. employers to meet their needs.

The only way for U.S. employers to meet their workforce needs is

to address this in the schools and to continue to expand training

in the U.S. of U.S. workers, which takes time and money, bring more

IT professions to the U.S. through nonimmigrant programs, or

outsource the IT work to workers in other parts of the world. Since

the U.S. appears to be lagging behind in STEM education, and the

demand for IT professionals to perform work is immediate, use of

the H-1B program is the best method to meet the needs of U.S.

employers.

Serious Shortage of IT Professionals in the U.S. and

Worldwide in Cybersecurity: The DOL's BLS has

indicated that employment in the computer and IT occupations is

expected to grow 12 percent annually from 2018 to 2028, much faster

than the average for all occupations.2 The BLS indicates that the demand

for these workers will stem from greater emphasis on cloud

computing, the collection and storage of big data, and

cybersecurity. See the following:

https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm

Besides a growing demand for workers to fill IT occupations in

the U.S. in the future, there are reports that there is perhaps an

even greater global shortage of IT professionals in cybersecurity.

According to the Center for Strategic International Studies (CSIS),

“82% of employers report a shortage of cybersecurity skills,

and that 71% believe the talent gap causes a direct and measurable

damage to their organization.” According to CyberSeek, an

initiative funded by the National Initiative for Cybersecurity

Education (NICE), the United States faced a shortfall of almost

314,000 cybersecurity professionals as of January 2019. To put this

in context, the country's total employed cybersecurity

workforce is just 716,000. According to data derived from job

postings, the number of unfilled cybersecurity jobs has grown by

more than 50 percent since 2015. By 2022, the global cybersecurity

workforce shortage has been projected to reach upwards of 1.8

million unfilled positions.” See the following:

https://www.csis.org/analysis/cybersecurity-workforce-gap

Other organizations and publications are reporting the same

shortage of IT professionals in the area of cybersecurity:

https://www.brinknews.com/a-global-shortage-of-cybersecurity-professionals-leaves-businesses-at-risk/

https://www.cnbc.com/2019/03/06/cybersecurity-expert-shortage-may-cost-companies-hundreds-of-millions.html

https://cybersecurityventures.com/jobs/

The shortage of IT professionals in the area of cybersecurity

poses a serious threat to U.S. businesses and the country. There is

a battle for IT talent. As a result, limiting the use of the H-1B

category to bring IT professionals to the U.S. would exacerbate an

already growing problem.

The H-1B Program has a Positive Impact on the U.S.

Economy: Studies on H-1B nonimmigrant workers have shown

that H-1B workers do not have a negative impact on American

workers. The American Immigration Council (AIC) issued a fact sheet

on April 2020 highlighting recent research showing that H-1B

workers contribute significantly to the U.S. economy.3 H-1B workers fill in critical gaps

in many Science, Technology, Engineering, Mathematics (STEM)

occupations, particular in computer science-related occupations, as

shown by data from the Bureau of Labor Statistics (BLS) showing low

unemployment rates for certain occupational categories that have

high use of the H-1B program. In addition, academic studies have

shown that “high-skilled immigrants have the potential for

opening up opportunities for US workers . . . .”4 The AIC report concludes that an

increase in H-1B visas could create an estimated 1.3 million new

jobs and add around $158 billion to the U.S.'s gross domestic

product by 2045. This indicates that limiting the number or

admission of H-1Bs would not only hamper job growth and the

recovery but could put existing US jobs at risk. Moreover, studies

have shown the companies have responded to restrictions on H-1B

visas by increasing employment at their foreign affiliates rather

than expanding operations in the U.S.5 Academic studies have borne this

out, with one in-depth study arguing that “in an increasingly

global world, US restrictions on the hiring of foreign high-skilled

workers are likely to result in greater foreign outsourcing work by

U.S. employers.”6

The H-1B Program is a Positive Force for American

Innovation and Competitiveness: There have been many

studies that have shown the H-1B program is a positive force for

American innovation and competitiveness. A recent study published

in May 2020 indicates that restricting immigration will hinder

America's ability to compete and innovate.7 In a survey of Harvard Business

School alumni indicated that “immigrants were critical for

developing better products and services, increasing the quality of

innovation, and reaching international customers.”8 The Trump Administration's

rhetoric and policy have made it increasingly difficult for these

U.S. entrepreneurs to attract highly skilled talent.

High Level of Review, Compliance, and Enforcement

Measures within the H-1B Program: Those critical of the

H-1B program assert there is a high level of fraud and abuse with

the program. This is not accurate. The H-1B program has in place

multiple review, compliance and enforcement mechanisms to protect

U.S. workers and wages, which most of the public is unaware, and

include the following:

  • LCA Posting and H-1B Public Access File

    Requirements: Before an H-1B petition is filed with the

    USCIS, a U.S. employer must first obtain a certified LCA from the

    DOL. Before the LCA is filed with the DOL, the U.S. employer must

    post the LCA or notice of the filing of the LCA to workers at the

    location where the work is to be performed with information about

    the position described on the LCA, including the wages to be paid.

    [H-1B workers must be paid at least the higher of the prevailing

    wage or actual market wage.] This notice provides an opportunity

    for U.S. workers to inquire about the position and file a complaint

    with the DOL if they believe there is any violation. In addition, a

    U.S. employer is required to make available a file for each LCA

    filed with the DOL for public inspection. This H-1B public access

    file provides information about the position, and, again, provides

    information as to how a person may file a complaint with the DOL,

    if he or she believes there is an issue with the H-1B employment,

    wages, etc. Other nonimmigrant guest worker programs do not have

    these features.

  • LCA Fines and Penalties: When LCA violations

    are found by DOL's Wage and Hour Division, back wages and civil

    monetary penalties may be imposed on the H-1B employer. In some

    cases, criminal penalties and debarment may be imposed. With

    respect to civil monetary penalties, the maximum penalty amount per

    each violation is the following: $1,928.00 (substantial violations

    regarding LCA notice posting, violations pertaining to strikes or

    lockouts, etc.) and , $7,846.00 (willful failures pertaining to

    wages and working conditions, willful misrepresentation of a

    material fact, etc.), and $54,921 (willful violations resulting in

    displacement of U.S. worker by the employer 90 days before and

    ending 90 days after the filing of an H-1B petition, willful

    violations pertaining to working conditions, wages, etc.). See the

    following: https://www.dol.gov/agencies/whd/immigration/h1b#cmp.

    As indicated, these civil monetary penalties that may be imposed

    are per violation, and act as a deterrent against impropriety.

  • H-1B Debarment List: The DOL's Wage and

    Hour Division maintains a list of willful violator employers of the

    H-1B/LCA program. https://www.dol.gov/agencies/whd/immigration/h1b/debarment

    As you can see from the list, the number of U.S. employers listed

    is quite short. There are currently only nine (9) employers listed

    out of the many thousands of H-1B sponsors and historic data

    indicates similar trends over past years. This indicates that far

    less than 1/1000th of sponsors are willful violators.

    Further, USCIS found that of the small fraction of companies with

    violations (whether willful or not), most had fewer than 25

    employees and revenues of less than $10 million.9 U.S. employers comply with the LCA

    and other H-1B requirements and appropriately pay their H-1B

    workers. If H-1B employers did not, then the list would be much

    longer.

  • USCIS On-Line Procedure to Report H-1B Fraud and

    Abuse: In 2017, the Trump Administration began implemented

    new ways for the public to report allegations of H-1B fraud and

    abuse that now includes an on-line procedure as well. To date,

    though, there have been no reports issued or evidence given by

    Administration officials of fraud or abuse in the program. See https://www.uscis.gov/report-fraud/combating-fraud-and-abuse-h-1b-visa-program.

  • The H-1B Program is a Highly Monitored and Scrutinized

    by Multiple U.S. Government Agencies: The U.S. government

    has put in place numerous limits on the H-1B visa programs and

    monitors the program scrupulously. First, the H-1B program is

    capped at a maximum of 65,000 eligible applicants (plus an

    additional 20,000 for holders of graduate degrees) and this cap has

    been consistent since 2004. Historically, H-1B cap petitions

    (excluding extension petitions) have been subjected to a lottery if

    the number of petitions exceeded the cap; this is to ensure that no

    one petitioner receives preferential treatment. Recently, the USCIS

    added a new step to the H-1B petitioning process by creating a

    registration program for all applicants that must be completed to

    be eligible for the lottery. Moreover, in order to be issued a new

    H-1B visa to work in the U.S., multiple government agencies are

    involved in the review and approval process, which includes DOL,

    USCIS, U.S. Department of State (DOS), and U.S. Customs and Border

    Protection (CBP).

A U.S. employer begins the H-1B process by posting the LCA or

notice of the filing of the LCA for public review and, once posted,

files an LCA with the DOL. Once the LCA is certified by the DOL in

approximately ten (10) days, the U.S. employer files an H-1B

petition on behalf of the foreign national with the U.S.

Citizenship and Immigration Services (USCIS). Once the petition is

reviewed by the USCIS and the USCIS is satisfied with the

information contained in the petition, the foreign national applies

for an H-1B visa at a U.S. embassy or consulate. Once the U.S.

embassy completes its review of the visa application and supporting

documentation, the H-1B visa is issued. The foreign national then

take the visa, travels to the U.S., and applies for admission at a

U.S. port of entry, where, once again, a CBP officer reviews the

case. In addition, even after being admitted into the U.S., USCIS

has an H-1B site visit program in which officers appear at the work

location listed on the H-1B petition to verify the H-1B worker is

performing work consistent with what was described in the H-1B

petition and being paid consistent with the required wage listed on

the LCA. Furthermore, DOL's Wage and Hour Division may conduct

separate investigations, if complaints are received from the USCIS

or the public, etc. in connection with LCA wage or working

condition violations, etc.

The H-1B program is arguably one of the most monitored

nonimmigrant visa programs in the U.S. If there was widespread

fraud and abuse, the number of U.S. employers debarred from the

program and/or listed on the debarment list would swell, and media

reports of wage violations, resulting in the imposition of large

fines, as well as criminal prosecution, would be frequent. The fact

the debarment list is short and media reports of wage violations

are infrequent, suggest 1) the above government agencies are doing

their job, 2) the review and enforcement measures that are in place

are effective, and 3) virtually all, but some smaller U.S.

employers abide by all relevant US laws and regulations for the

H-1B program.

What is needed at this time by U.S. lawmakers and U.S.

Administration officials is a more thoughtful approach — An

in-depth examination of the current unemployment problem in the

U.S., balanced with the needs of the U.S. for skilled

professionals, particularly people with computer science,

engineering, and other specialized knowledge, rather than a blanket

policy to suspend the H-1B program entirely or limit it to only

those who are paid extremely high wages. The U.S. has maintained

its position as a global superpower, because of its technology. The

technology advantage the U.S. has enjoyed is due, in part, to the

flow of IT and other skilled talent into the country, and the H-1B

program is one of the major means used to bring this IT talent to

the U.S. There is a battle for this talent in the world by

countries and businesses. Given the fact the U.S. is not graduating

enough people with computer science or engineering degrees, and the

fact there is a global shortage of IT talent, particularly in

cybersecurity, and given there is a growing need for better, faster

computer systems to operate our businesses; improve our ability to

connect with one another as more of us learn to work remotely;

secure and protect our financial transactions and our personal

information, as well as develop new high-tech products, IT

professionals are needed in the U.S. now more than ever. Limiting

the ability of U.S. employers to bring talented IT professionals to

the U.S. through the H-1B program, on the basis of high

unemployment in non-IT occupations, caused by a global pandemic

that occurs once a century, would be a mistake. It would hurt the

U.S. economic recovery in the long run and stifle the type of

innovation that has helped the U.S. maintain its leading position

in the world.

Footnotes

3. “The H-1B Visa Program: A

Primer on the Program and Its Impact on Jobs, Wages, and the

Economy.” American Immigration Council, April 2020:

https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet

4. John Bound, Gaurav Khanna, and

Nicolas Morales. “Understanding the Economic Impact of the

H-1B Program on the United States.” In G.H. Hanson, W.R. Kerr,

and S. Turner, eds. High-Skilled Migration to the United States

and Its Economic Consequences (University of Chicago Press,

2018), p. 162.

5. American Immigration

Council.

6. John Bound, Gaurav Khanna, and

Nicolas Morales,” p. 111.

7. William R. Kerr.

“Immigration Policies Threaten American Competitiveness.”

Harvard Business School, Working Knowledge: May 11, 2020: https://hbswk.hbs.edu/item/immigration-policies-threaten-american-competitiveness

8. Kerr. “Immigration

Policies Threaten American Competitiveness.”

9. Please see U.S. Citizenship

and Immigration Services. H-1B Benefit Fraud & Compliance

Assessment. (Washington, D.C.: USCIS, 2008), p. 14. Available

as AILA Infonet Doc. No. 08100965.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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