What a Republican Congress means for the H-1B visa

Many House Republicans support raising the H-1B minimum salary to $110,000 and distributing visas on the basis of salary, with the highest salaries first in line.

If you want to know how the Republican-controlled House will stand on the H-1B visa program in 2023, look to Sen. Ted Cruz (R-Texas). In 2013, Cruz sought to increase the base H-1B cap from 65,000 to 325,000 or by 500%.

"This measure would effectively address the needs of our nation's high-skill workforce," he said at the time.

But just two years later, Cruz reversed course. He joined former Sen. Jeff Sessions (R-Ala.) in a bill that would raise the minimum H-1B visa salary to $110,000 and prevent employers from hiring H-1B workers for two years after a layoff.

By 2015, it became hard for Cruz and many other lawmakers to dismiss the problems with the H-1B program.

"The mass layoff of American workers at Disney, Southern California Edison and many other companies -- who were then forced to train their foreign replacements -- underscores that our political system has failed in its duty to protect our own people," Sessions said in announcing the legislation.

The Cruz and Sessions plan to raise H-1B minimum salaries to $110,000 is now backed by nearly 160 U.S. House members, who are all signers of the Republican Study Committee's "Blueprint to Save America." The plan from the conservative caucus includes ending the H-1B visa lottery, which is used today to distribute visas over the 85,000 annual allotment, and replacing it with a distribution system that allocates visas based on salary offering -- with the highest salaries assured a visa.

But even if Republicans control the House, that doesn't mean H-1B visa legislation will advance next year. None of the immigration sources contacted for this column, who represent all sides of this issue, seemed optimistic about any work visa legislation passing in 2023. Immigration issues have all but stalled, and the House Judiciary Committee, which oversees immigration, is expected to spend the next year focused on oversight and investigations of President Biden's administration and not work-related immigration.

Rep. Tom McClintock (R-Calif.), ranking member of the House Judiciary Committee Immigration and Citizenship Subcommittee who would become the subcommittee's chair if Republicans win the House, appears focused on the southern border and not on work visas. In his list of issues, he only mentions "illegal immigration -- border crisis" as a topic, not work visas.

Regardless, McClintock is a critic of the H-1B visa program. At a hearing in 2021, he referred to the "continuing scandals" of American workers "ordered to train their replacements as a condition of receiving severance pay."

Outlook for Eagle Act is poor

The one tech immigration bill that has a chance of passage in the lame-duck session is the Equal Access to Green Cards for Legal Employment Act, or Eagle Act. That bill eliminates the per-country cap on green cards or permanent residency. Under current law, no country gets more than 7% of the available employment-based green card visas.

The H-1B visa is a steppingstone to permanent residency, and approximately 75% of all H-1B visa holders are from India. But the 7% per country cap means Indian workers can wait decades for a green card, while workers from countries with little immigration can get an employment-based green card relatively quickly.

The outlook for the Eagle Act, however, is between nil and bleak. The Eagle Act will likely need to be attached to a must-pass bill, such as the budget, to win approval this year. If that happens, other lawmakers might seek to amend the budget with their immigration bills, triggering broader opposition.

The Eagle Act is not without controversy. If the per-country cap ends, applicants will be in one long line, and the green cards will be distributed on a first-come, first-served basis, which will be a loss to people outside of India.

Although the election seems set to change who controls Congress, some alliances in the H-1B visa reform effort remain.

In the Senate, Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) have been working together for more than a decade on H-1B reform efforts, a relationship that has endured back-and-forth changes in political power. Their latest bill, released in March, gives visa preference to people with advanced degrees received in the U.S., who bring "valuable skills" and are well paid.

The legislation "explicitly prohibits the replacement of American workers" by visa holders. Grassley, who won reelection Wednesday, and Durbin have been trying to get variations of this legislation approved for years, and it won't happen in the lame-duck session. This bill is likely to reappear next year.

Rep. Zoe Lofgren (D-Calif.), who has championed the Eagle Act and chairs the Immigration Subcommittee, has worked with Rep. Darrell Issa (R-Calif.) on H-1B visa program reform ideas. That relationship could be the basis for bipartisan work on visa reform in 2023.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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