President Joe Biden's administration has not proposed raising the H-1B cap, but it is getting easier for businesses to obtain a visa. Some of the obstacles that companies faced during former President Donald Trump's administration have lessened.
For now, the Biden administration is working with lawmakers to increase the number of available employment-based green cards, a type of visa that allows for permanent residency but can go unused due to administrative delays. If the unused green card recapture provision, included in the budget reconciliation bill, succeeds in Congress, thousands of foreign workers on H-1B visas will gain permanent residency.
While the outcome in Congress is uncertain, evidence of change in the H-1B program can already be seen in the government's data.
In 2018, for instance, H-1B work visa overall approval rates were at 84.5%, under the Trump administration. In the first two quarters of the Biden administration, the visa approval rates were 96.8% and 98.1%, respectively.
"Our experience, under the Trump administration, is that we were receiving friction and pushback on our applications in almost every way possible," said Kate Lincoln-Goldfinch, an immigration attorney in Austin, Texas. The obstacles included visa "denials, rejections, delays, increasing fees, increasing requirements," she said.
"We are slowly seeing improvement in most of those areas under the Biden administration," Lincoln-Goldfinch said.
It may be a "combination of effects" easing the H-1B visa process, said Ron Hira, an associate professor of political science at Howard University.
Kate Lincoln-GoldfinchImmigration attorney, Lincoln-Goldfinch Law
The Trump administration increased H-1B work visa denial rates through changes in some visa rules. IT services vendors sued in federal court over the changes, and won last year, costing the Trump administration the basis for many visa denials.
One overturned rule that had an impact, Hira said, was a requirement that employers identify a work itinerary for H-1B workers for the entire requested duration of the visa.
As far as easing the process, Hira noted that the Biden administration "has made no effort to promulgate more stringent policies."
Facebook's immigration role
Hira is critical of the Biden administration's recent $14 million settlement with Facebook over its abuses of the employment-based visa program, which he called a slap on the wrist for a firm that earned $86 billion in revenue in 2020.
Facebook is an anomaly among large high-tech product companies for the number of foreign workers it employs. The government labeled it an "H-1B dependent" employer, a designation for companies with 15% or more of their employees on H-1B work visas. The firm has nearly 61,000 workers, but that includes headcount in other countries.
The Trump administration filed the lawsuit in December 2020, alleging Facebook favored foreign workers over U.S. workers. To get a green card, employers first have to make an effort to find a U.S. worker "able, willing and qualified" to do the job. The government said that Facebook required U.S. candidates to submit applications by mail only and then refused to consider U.S. workers who applied for those positions.
Facebook CEO Mark Zuckerberg is a proponent of increased immigration. He was a founder of FWD.us, an immigration lobbying group that was launched in 2013. In January, just after Biden took office, the Chan Zuckerberg Initiative, named after Zuckerberg and his spouse, Priscilla Chan, announced a $100 million investment to FWD.us over the next three years.
FWD.us spent nearly $900,000 on lobbying in 2020, according to OpenSecrets, and has argued for increased immigration, which includes expanding the H-1B caps, now at 85,000, and employment-based immigration.
Employment-based green cards are capped at 140,000 per year. The visa recapture provision that's now in Congress would increase the number of available green cards from a few hundred thousand to nearly a million, depending on various estimates. The provision also exempts the green card applicant's spouse and dependents from the cap; they are now counted against it.
Green card push in Congress
Employees can work on an H-1B visa for up to six years. If their employer sponsors them for a green card, they can continue to work on an H-1B until their green card is approved.
But getting a green card may involve a decades-long wait due to a per-country limit on immigration, which deems that only 7% of foreign nationals from any one country can get a green card annually. That wait can be especially long for workers from India, who in 2019 made up approximately 75% of H-1B visa applicants, according to U.S. Citizenship and Immigration Services (USCIS) data. The green card recapture provisions in the reconciliation bill may clear much of that backlog.
Along with the recapture of unused green cards, lawmakers are considering a provision in the bill that would waive this annual immigration limitation through a $5,000 fee.
"The new provisions will not make much of a difference for a foreign student who is born in Iceland," said Cyrus Mehta, an immigration attorney in New York, referring to a country with limited immigration to the U.S. But it "will certainly provide relief to people born in India who have to wait decades before they can file for adjustment of status due to the per-country limits." A change in adjustment of status can trigger permanent residency status.
The fate of green card immigration reform is tenuous. The immigration proposals amount to just a few pages of the 2,500-page budget reconciliation bill. The bill still has to get a vote in the House, but a more significant challenge awaits in the Senate.
The reconciliation process allows approval in the Senate with a simple majority. Democrats will need complete agreement among their members to make that approval happen, as they are not expecting help from Republicans in passing the bill. Another obstacle facing the Democrats is the Senate parliamentarian, who can disqualify parts of the bill considered unrelated to the budget.
H-1B vs. green cards
The green card legislation is generating controversy. Robert Law, chief of the office of policy and strategy at USCIS during the Trump administration, argued that the $5,000 proposed fee provision encourages businesses to increase recruitment of foreign college students directly out of college to lower the cost of labor. Today, employers typically try to get H-1B visas for recent college graduates, but getting a visa is difficult; the program is oversubscribed, and visas are distributed via a lottery. Adding the $5,000 fee creates an alternative way to bring in foreign workers without a lottery.
"This provision would remove any incentive for the tech industry to recruit and hire American workers," Law said. He is now director for regulatory affairs and policy at the Center for Immigration Studies, which advocates for immigration restrictions.
The issue cuts to the debate over the use of H-1B visas versus green cards. H-1B workers are dependent on their employers. If they lose their jobs, they may have to leave the country if they cannot quickly find another business sponsor. Green card holders or permanent residents have the same ability to switch employers as any citizen.
Employers use H-1B visas "because they want to tie up their employee," said former U.S. Rep. Bruce Morrison, D-Conn., former chair of the U.S. House Immigration Subcommittee who helped write the 1990 immigration law that now governs the immigration process.
Morrison supports the green card provisions, as they only apply to people in the U.S. who are eligible for an adjustment of status. That means applicants have an approved petition with the labor certification, ensuring a business tried to fill the position with an American worker first.
Still, there are problems with the labor certification process, as illustrated by the government's recently settled lawsuit against Facebook. Critics have long complained that employers, determined to sponsor green card workers, can exclude U.S. workers from consideration for a job, despite the law's requirement.
Whatever flaws exist with the green card program, others have argued the H-1B program is worse. Indeed, some critics like Morrison see the H-1B visa program as indentured servitude because a worker's fate can be tied to an employer's satisfaction with job performance. Providing a clearer path to permanent residency removes that power dynamic.
"There's no reason employers should need H-1B indenturing -- they should be able to keep people by paying them well and treating them well," which is how employers keep Americans, Morrison said.
Patrick Thibodeau covers HCM and ERP technologies for TechTarget. He's worked for more than two decades as an enterprise IT reporter.