After a few days reviewing the law concerning H-1B and L-1 visas, I’m finding that the foreign labor arbitrage problem can be by addressed within current law and resolved by the Secretary of Labor practicing due diligence with respect to Labor Certifications.
Following the election of President Trump, with his advanced understanding of the foreign labor problem, we should become very interested in his choice for Secretary of Labor, the Secretary of State and the Attorney General.
U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part II › § 1182(5) Labor certification and qualifications for certain immigrants(A) Labor certification(i) In general Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.(ii) Certain aliens subject to special rule For purposes of clause (i)(I), an alien described in this clause is an alien who—(I) is a member of the teaching profession, or(II) has exceptional ability in the sciences or the arts.
How is the Secretary of Labor certifying that there are not sufficient workers available in the case of § 1182? Apparently, for an H-1B, all that is required is a bachelor’s degree in an ill-defined definition known as “Specialty occupations” for certification. However, in the case of 1182(a)(5)(A)(i)(I), if the foreign worker’s only credential is a bachelor’s degree, then the foreign worker is inadmissible if a person with a bachelor’s degree is available for the position.
Even in the case of an “exempt” foreign candidate, if there is an equally qualified U.S. candidate, § 1182 would prevail and the certification denied; exempt H-1B status only exempts the employer from the additional attestation regulations in the CFR. I for one find it highly unlikely that the Secretary of Labor is even examines the available data concerning the — sufficient workers labor conditions — clause. The most recent data we have for H-1B is from October 2013.
H-1B initial employmentEven as of November 2016, the most recently published H-1B Characteristics report (FY2014) is for nonimmigrants who were authorized for employment on October 1, 2013. Reminding the reader that the total H-1B cap is 85,000, the FY2014 report shows us that 80,877 initial approvals were granted in Computer-related occupations.
UnemploymentQ3 2013 unemployment in Computer occupations was 155,000. These are computer professionals actively seeking work. Keep in mind that if the computer professional’s last employment was as a barrister, (s)he is no longer counted as an unemployed computer professional.
“Table 3. Employed and experienced unemployed persons by detailed occupation and class of worker, Quarter III 2013 (Source: Current Population Survey)”
Employment growthEmployment growth in Computer occupation for 2013 was 116,620. (80,877 new H-1B consumed (69.4%) of employment growth in the occupation.)
Note that the following Computer occupations do not require a bachelors degree.
This should reduce the H-1B eligible employment growth to 93,990, H-1B consumed 80.6% of the eligible Computer occupations
Source: U.S. Department of Labor Statistics. http://www.bls.gov/oes/tables.htm
College degree productionDegree production for U.S. citizens and permanent residents in Computer And Information Sciences and Support Services was 101,407 in 2013.
2013 Degrees/Awards Conferred: Computer And Information Sciences and Support Services
U.S. Citizens and Permanent Residents
Doctorate Degree-Other = 21
Master’s Degrees = 12,725
Bachelor’s Degrees = 49,204
Associate’s Degrees = 38,608
Degrees/Awards Conferred by Race (NCES population of institutions)
The damageKeep in mind that the following does not include other visa programs like the L-1, the TN (NAFTA), the O-1 and the EB permanent residence visa.
College Degrees (U.S. citizens and Perm residents) = 101,407
Computer occupations unemployed = 155,000
We find that just the H-1B program increased unemployment levels by 65,664. The average unemployment benefit nationally is $300 per week and since new college graduates are not reporting difficulty being placed, we presume the newly unemployed are those being displaced. If this is the case, the misuse of the H-1B is costing state unemployment programs $19,699,200.00 per week, or $512,179,200.00 per year, if extended to the full 26 weeks.
An additional 66,700 L-1 visas were issued in 2013, however these statistics are not delineated by occupation.
Source: U.S. Department of State. https://travel.state.gov/content/visas/en/law-and-policy/statistics/non-immigrant-visas.html