View From Washington: H-1B visa scheme tops out in five days

The US filled its 2017 H-1B visa quota in just five days, but at least this year's allocation will proceed.

The US reached its quota for the H-1B high technology immigrant worker visa on Friday (April 7), just days after this year’s applications opened. US Citizen and Immigration Services has filled demand for the 65,000 lottery-allocated H-1Bs and the further 20,000 for applicants with a US postgraduate qualification.

The good news is that this year’s visa run took place. There were fears that President Donald Trump’s administration would stay processing, pending immigration reform (reform that will be closely watched in the UK for when it has the bandwidth to consider the post-Brexit immigration regime).

The bad news, say Silicon Valley lobbyists, is that yet again the outcome highlights serious limitations in the existing H-1B scheme.

Pressure group has taken a lead on H-1B lobbying for technology companies. Its founders include Facebook’s Mark Zuckerberg and Microsoft’s Bill Gates. President Todd Schulte responded to Friday’s news in a blog.

“For the fifth consecutive year, the H-1B visa application window closed in just five days, showing that demand for talented high-skilled workers continues to dramatically outpace supply. The arbitrary cap means that talented individuals who would otherwise be helping to grow our economy are kept out of our country – and that the US loses out on the creation of American jobs, rising wages and economic growth,” he wrote. 

The reality is that nobody likes the H-1B. Not only do high technology companies argue it unhelpfully restricts the number of immigrant employees they can hire, they also agree with others – across a range that stretches from unions to senior officials in the Trump administration - that the system has long been abused, typically also at their expense.

The longest-standing charge is that H-1Bs are often used to hire cheaper immigrant labour for jobs previously held by US citizens. However, amid global trends in economic globalisation and communications, it is also associated with outsourcing: companies hire foreign staff to train in the US on how a part of the operation works and then send it overseas in its entirety. The H-1B holder returns home as its new manager.

Both these counts show that there are legitimate issues as to how high the bar should be set for H-1B holders. The scheme is intended to fill skill needs the US cannot meet domestically.

None of this is ‘fake news’. As Schulte’s blog post notes: “ continues to call on Congress to reform the H-1B visa to crack down on bad actors.” The President, for his part, has questioned his own previous use of H-1Bs to hire staff for the Trump Organization.

In his Joint Address to Congress, Trump proposed moving to work permits based on a tighter definition of the holder’s skills (again, something suggested by a number of senior UK politicians). That is not anathema to Silicon Valley, but as ever the devil will lie in its execution.

Hardware and software recruiters argue that while many branches of engineering have comparatively predictable skills shortages, the shortages in their sectors are often volatile. Shortages in coding for specific languages can rapidly ebb and flow, for example. In broader terms, high technology is by definition a disruptive business.

For these branches of engineering, the problems lie in securing a scheme that provides enough skilled immigrants and is also flexible enough to deliver the right capabilities at the right time. After all, where companies still have to train up a foreign worker after arrival, the question will be begged as to why the same training was not offered to a US citizen.

A further point is that while skills-based immigration regimes in Canada and Australia provide a possible template for a US (and ultimately a UK) system, the economic and employment needs of Silicon Valley and its sister clusters are in many ways very different. There is also the question of scale.

For the Federal Government, major challenges reside in administering such a scheme effectively in terms of both cost and the applicants ultimately selected. How granular an understanding of high technology’s needs can an individual visa officer be expected to have at any one time?

That H-1B has gone ahead for this fiscal year is seen as a positive sign. A persistent concern about the Trump administration has been a tendency to make decisions impacting high technology before all but a few of the senior high technology posts in the government have been filled. Here then, there is at least the prospect that wider consultation will take place before the President and Congress act.

Nevertheless, Washington is expected to play hardball. Trump made it clear during his campaign that he sees immigration reform as first and foremost a matter of protecting American jobs. It is a tentpole of his ‘America First’ agenda and his supporters expect him to deliver. The subtleties of a demand shift from, say, mobility to the Internet of Things may sit awkwardly here.

The result is therefore likely to be a bit of a fudge, a political compromise between industry’s needs and the electorate’s demands on immigration. Again, this will sound terribly familiar in London. So a great many of us will be watching what happens next in DC even more closely than usual.

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