Immigration Matters – Episode 7: The Importance of H1-B Visas Transcript

Episode 7: The Importance of H1-B Visas Transcript

Speakers- Raymond Lahoud, J. Alexander Short

Welcome to Norris Speaks, immigration Matters, a limited podcast series where we delve into the economic, employment, and cultural realities of immigration. I’m your host, Ray Lahoud, member and chair of the Immigration Law Group at Norris McLaughlin. In this episode, I’m joined by my colleague, Alex Short. To talk about the H1-B visa, its impact on the American workforce, and recent changes in trends, the H1-B visa itself. Welcome Alex to our podcast today it’s good to have you here to talk about this great program.

Thank you, Ray. I appreciate it.

Yeah, so you can just, you know, briefly here, kind of go.

Into a bit of background as the H one B program. As many of our listeners know, the H1-B Visa program has been long, objective, intense scrutiny and controversy. There have been high denial rates causing significant challenges to companies who, wish to hire foreign employees. Employees that are specialized have bachelor’s degrees, are professionals, are trying to fill their workforce with the best of talent, and have had a lot of difficulty here in the United States hiring US workers, particularly under the Trump administration. Denial rates were high, it was a very anti-H1B presidency. I remember immigration, we were just looking for reasons to deny H1-B Visa applications. Uh, with the change now to the Biden administration, the H1-B Visa denial rates have decreased significantly, and a lot of relief has really come about to American businesses, particularly those would you say in the tech sector.

Absolutely and Ray, I think it a good starting point here would be to address what the H1-B Visa does. Cause a lot of people may have heard of it, but they don’t know exactly, what that means.

Yeah, and that’s a good starting point there, Alex thank you. The H1-B visa to all those who haven’t, uh, dealt with it or employers who haven’t dealt with it. It’s a temporary non-immigrant visa category that lets employers from all over the country to, allows them to petition on behalf of foreign professionals who work in what’s been defined as specialty occupations. There is no real definition to what a specialty occupation is, but normally it’s a position that would require a bachelor’s degree for entry into the job. You know, these jobs generally focus the fields, focus in the fields of science, technology, engineering, math, the STEM degrees, and allow US employers to fill critically important jobs in the United States with foreign workers. There are a lot of critics.


There are a lot of people who support it though.

Critics will say that it limits job opportunities for US workers. Others suggest that H1-B workers offer critical support to the US economy, which I agree with. The second part of that, they do offer critical support given their work shortage right now. Recent report by the American Immigration Council found that H1-B recipients provided essential, and critical assistance during the Covid-19 pandemic, with many doctors, scientists, and nurses who were present in the United States because of the H1-B Visa, I’ve dealt with a lot of individuals who were involved in the creation development of the vaccine for Covid 19, which were here on the H1-B visa. They’ve really become an integral part of the American economy and the American workforce. As I was saying though, earlier, you know, during the Trump administration, the program was merit controversy due to high denial rates. And it became increasingly difficult during the Trump administration for companies to bring in foreign workers. But there’s been a change. Would you say there?

There has Ray and I think that it’s an interesting time to look at the H1-B program, especially in the wake of a pandemic that I think touched all of our lives. As you mentioned, the H1-B program is particularly controversial among immigration programs. On one side you have people saying that the program offers critical support to our labor force for these specialty jobs. We’re talking about scientists, we’re talking about doctors. We’re talking about nurses, which in recent years have become particularly important. But on the other side, there are a lot of critics of the program that suggest that the H1-B workers, Displacing American jobs and providing additional competition for American workers.

How does that play with the shortage though of workers?  A lot of what I hear from employers is that I cannot find somebody to take on a job I’m recruiting here on every website in the US. How does the H one B program would you say, play into that? Does it cover that void in a way?

Well, I think the primary goal of the program, and a lot of its supporters would attest to this. Is that the program fills that void where an employer is seeking labor and is unable to provide it through the American workforce. And so one place that you see a host of H1-B workers is Silicon Valley. Uh, and as I’m sure all of our listeners know Silicon Valley is the hub in California that produces all of the, technology and, and technological advances in our economy. Companies like Apple have their headquarters in Silicon Valley. I saw just recently that, the most recent data shows one in four workers in Silicon Valley is foreign and born. Interestingly, the most recent layoffs, which have been in the news in the last couple of, have been affecting these workers more than anybody else.

 And that’s causing, I would say, an issue.

Because if you have these tech companies, if you have, you know, the Amazons, the Apples, the Metas laying off people who are here on the H1-B visa. These workers essentially have 60 days to either find another job or to leave the United States. They could be here with their families. They could have been here for many, many years. Under this H1-B, you know, getting it renewed because they have potentially like a permit approved or an I-140 an immigrant petition approved by their employers. So these layoffs, they’re creating a big issue for those who are already in the United States under the H1-B visa. And I’m seeing a lot of people being forced to return back to their home country after many years here, as I was saying. But I’m also seeing an opening for the smaller employers now. You know, because when it came down to Amazon or some of these big Silicon Valley employers, to bring on H1-B workers. They brought on a lot of H1-B workers.

of course.

And they took, the cap is how many? H1-B’S a year.

I think it’s 65,000.

65,000. There’s another 20,000 set aside for masters.


For people with master’s degrees. So Facebook, all these big Silicon Valley companies have all gone in, secured a lot of H1-B workers and they’ve essentially, boxed out a lot of the smaller.

Employers who would be able to use yes, these H1-B workers. So what, what I’m seeing a trend here is for these employers that were laid off, one of the first things, you know, they’re calling us, can you help us find an employer? Can you link us up with, with an agency or the like, is that, you know, these layoffs while negative to, let’s say the US economy, they’re laying off H1-B workers. But we’re able to relocate these H1-B workers to smaller companies who aren’t able to find US employee. To perform the responsibilities as professional responsibilities, would you say?

I think that’s a, really good point because the, H1-B workers come here and like you said, there are numerical caps on a vast majority of them, to enter the United States and start working. And the unfortunate reality, especially in times of economic turbulence, we see the trends across, currently across the tech industry. Where companies are laying off 10,000 people at a time. Every couple weeks you see new articles talking about thousands of workers losing their jobs. And the unfortunate reality is that there is no cushion for H1-B workers who have been laid off aside from a 60-day period, for them to find a new job. So I think that what you mentioned is a great point. We have to focus on this unique population and help find them positions. In smaller businesses, when these larger, you know, mega businesses like Google or Facebook are letting them off in droves. So, I think that regardless of one’s politics, the next step for, for this population will be to coordinate efforts to find new work, more specialized work in smaller businesses. And it might actually end up being a good thing to get them more connected to local American businesses, where they can thrive and hopefully you know, continue their careers here.

And, also, you know, we try to stay away from politics, but the reality is, is that there is a huge amount of, positions that are open across the country that just can’t be filled. Employers are having a lot of difficulty finding. Employees to fill professional positions, whether it’s in IT or it’s in medicine, it’s in nursing, architecture, engineering, that’s what is today. I mean, I know in Pennsylvania for every, unemployed person, there’s 2.5. Available jobs to be filled. And so this, you know, again, politics aside and it’s tough to put politics aside because politics are really involved in everything.


The H1-B visa can be used and should be used to fill this void that we have in places like Pennsylvania or in, other states to fill this void. Um, in, in employers. Being able to fulfill their workforce needs. Another point that’s that we have to mention here is most of these H1-B Visa holders were educated in the United States.

Yes, absolutely.

And, and you know, we look at that and we, we listen to, you know, news stations and conservative and liberal news stations. Is it, should we educate and just send them back to their home countries or should we be giving them this, this good education which they’re paying for from their own pockets without any financial aid or any support from the US government or the like. Or should we just, you know, educate them here with our, with our systems, and keep them here because we are creating, obviously our education system is the best in the world. So, by educating them, we are creating the best and the brightest.


So, I mean, it’s kind of, there’s, there’s two very good positives here, one with the layoffs too, with, you know, it’s flowing up the voids and, and three is, You know, it prevents that brain drain. I’ll say that we’re seeing, even in the Lehigh Valley, like in Lehigh Valley, there are several colleges, universities here that have international students, thousands of international students, and, you know, where are these students gonna go? We’re, we’re, we’re giving them the best education. Should we just send them back to their home country, or should we do what we can here to keep them in the United States and use what they’ve learned here in the United States. Use their expertise, their experience, their passion, and their dedication to work to fill that void that just exists in today’s workforce, again, employers every day are calling. I can’t find somebody to do my I.T. I can’t find an engineer. I can’t find an architect. And it’s creating a lot of issues.

And the risk that we run, and I’ve seen this and I’m sure you have too, Ray, is that if you have a, an individual from another country who, who got an education here, and let’s say they’re applying for an H1-B visa, but they’re not certain they’re gonna get it. A lot of these individuals will start looking at other countries. They’ll look at Canada and, and of course we’ll be told that Canada’s immigration laws are a little bit more relaxed than what the United States and it, I think it’s only fair for those people to consider, you know, what country do I wanna call home. And I think that this is a real issue. Ultimately, it’s up to, the legislature to address and to work out what solutions there are. But I think that just from my own personal experience and yours, I’m sure as well, we run the risk of losing talented, educated, skilled workers,

that we need.

That yes, that, that there’s a demonstrated need for we risk losing those individuals just as a result of our legislative policy. And I think that is the main takeaway here is that, that something has to be done to ensure that we can cultivate and keep the talent that we cultivated in the United States regardless of what country the individual was born. And I think that that in turn could really boost, the American economy and, and potentially, you know, prevent some of these layoffs that we’re seeing and help grow into the future.

So, you know, the change or the shift that’s happened with the change in administrations has been good for the H1-B Visa program because of lower denial rates, you know, more applications are getting approved.

It’s companies are able to fill these, these critical positions that, that, that they need without running into, you know, administrative, concerns or administrative denials that are often weren’t even based in law during the prior administration, but we’re still limited with it. I mean, like we had said earlier in our discussion here, there is 65,000 H1-B visas available for those with a bachelor’s degree with another 20,000 with, for those who have a US Master’s, US earned master’s degree, that’s 85,000 employees for the entire country to the H1-B program. That’s a very low number.


When you look at the need that we have across the country for people of, um, you know, with these professional degrees of these specialized skills and, and, and the like. So would you say that an answer would be, you know, for the legislature I mean, we’re not in Congress. Thankfully we’re not in Congress here. Maybe you may be at some point. I certainly don’t intend on to run at any time. Would you agree? Like the H1- B program cap, that’s been the same for decades now. Should be increased because there’s gonna be a lot of blowbacks there. You know, if they raise it to 200,000, you’re gonna have members of Congress saying, who’s taking jobs from Americans?

But Americans aren’t necessarily doing a lot of, or let me take that back there. Americans, there isn’t enough Americans, let’s say, to do, uh, a lot of this.

And that’s a, a good point is that, the country continues to grow, without any regard to the numbers that were written into the law. However, many years ago that law was written. So, we have to consider, the size of the workforce, the rate that it’s growing, and cultivate some sort of solution, that takes that into account and allows for progression and growth in the population. But you brought up, an excellent point about presidential administration. So, we’re talking about the legislature here, but the reality is that when the White House shifts from republican to Democrat or vice versa. Immigration lawyers see the H1-B laws implemented in a different way.


So, as you mentioned, the Trump administration, there was a very high denial rate, for these applications. Which from, I think all accounts is, is more of a reflection on the policy of the Trump White House than a particular credentials of the applicants that were applying during that period. But now with the Biden administration, we’ve seen denial rates reaching an all-time low. Uh, we’re seeing a much more friendly administration to foreign workers, and I think it’s a little bit unfortunate that we see politics kind of affecting this population as much as it does because some of these individuals are worried about who’s gonna be in the White House when they’re looking for a job.

Well, that’s a huge problem also for the employers who are planning for the next 5, 10, 15 years, because it’s creating a level of uncertainty as to you know, who can we hire? How far should our recruitment reach across the country? Should we be looking at international, departments, at colleges and universities to seek out employees there in addition to the US employees? So that’s, that’s a, critical issue that, you know, I think that, Congress could even address that to provide more, you know, direct standards or, you know, burdens of proof. That documentation requirements are the like to establish what actually does qualify for this kind of visa rather than it, you know, going by the, the wind of politics, which changes every four years apparently here they this discretion within the administrations when they come in there. And another thing that, you know, our listeners should be reminded of, and Alex I’m sure you could talk about this a bit more here, is that the H1-B program,  is based on a prevailing wage system in that when an employer wants to hire an H1- B worker, they have to submit what’s called a labor certification.


Which sets the wage that this employee the minimum wage. That this employee must earn while working, for that specific employer. within that industry. And that wage in and of itself, it’s based on a Department of Labor set prevailing wage. It’s not a, they’re not low numbers,


They’re, they’re based on, you know, the industry. They’re based on, you know, what’s. Being paid to US workers, they’re based on the region where that employee is gonna be, you know, taken, taken on the position or taken on the opportunity. And also that wage that is being paid to the H1-B worker cannot be less than what would be paid to a US worker. So a lot of times what I see is, employers, you know, already have somebody have multiple positions for an engineer, let’s say 10 positions. And their minimum wage is, not minimum wage, but the wage that they pay as a minimum for that position is say, 60,000 or so. And then they secure an H1-B recruit. We go through the labor certification process and the wage, prevailing wage comes back for that area and for that type of position for identical people, like whether US citizen or a national is a hundred thousand dollars or $65,000. So in essence, you know, if that employer wants to utilize the H1-B program, the wage of those US employees would have to increase.

Right. It’s very interesting because when I think the protection there, the worry that the Department of Labor has, is that employers will invite H1-B workers and then pay them a lot less.

It’s not true.

Right? Of course not. But, the concern there is protecting equally, you know, US citizens as well as foreign workers, and, by implementing this somewhat convoluted system that they have in place, that they are potentially ensuring that there’s no abuses to the system. And then I think that that’s a. Obviously a good thing. You don’t want, either an employer to be abusing the system or a worker to come in and be abusing the relationship for, for their benefit either. But I think that what this topic highlights is how complicated what a relatively simple visa category can be.


Where we’re dealing with multiple government agencies, we’re dealing with economics, we’re dealing with people coming in, analyzing international immigration regulations to determine, where they wanna work. But in reality, in especially as the country and the world becomes ever more global, this is what we’re up against.

We have to create a standard to invite these individuals into the country, educate them, and have them help build America into what we want it to become. Obviously.

It’s a global workforce now, really.

We are, I’m sure everyone sitting in this room with us and, uh, the listeners as. are the products of immigration.


And it’s pretty much in the United States. Just a question of how recently you immigrated for the

Very good point.

The vast majority of people, and I think that we have to embrace that a little bit more and, put politics aside.

Not run from it.

Exactly. And, recognize that this is part of the solution and, not part of the problems.

And other countries are doing it too.


And they’re secure in the best. And the brightest of talent, but there’s two words before we, we end this, this podcast. Two words. Yeah. Just, just brought up. It’s, convoluted and complex and I think that we can all agree that our current immigration system is, as it stands, is convoluted.


And complex.


It’s incredibly complex and convoluted, which, you know, it just takes us more to the point that, you know, legislative action must be taken for a full overhaul of the entire Immigration system, including increasing employment-based visas outside of the H1-B program and like, and, and with that, with that note of a very convoluted and, and complex immigration system, I am, Really happy to have you here with me today, Alex.

Thank you Ray. Appreciate it.

To talk about this great program. So this has been, Norris Speaks Immigration Matters. A limited podcast area is where we delve into the economic, employment, and cultural realities of immigration. Again, I want to thank my, great guests here, Alex Short, and you, our listeners, for being a part of this conversation. Be sure to stay on the lookout for a brand-new episode. If you would like to learn more about immigration law, please visit our website at, and I would urge you to subscribe to our blog Immigration Matters to Stay up to date on today’s immigration matters.

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