Based on President Trump's proclamation of April 22, 2020, U.S. employers that rely on the H-1B visa program to bring talented Information Technology (IT) professionals to the U.S. may find it even harder to bring these workers to the U.S. in the future. While the proclamation only restricted certain immigrant visa holders from entering the United States, it also indicated similar restrictions may be imposed in the future on beneficiaries of certain nonimmigrant visa programs, including the H-1B program. This writing will discuss why such a policy of limiting H-1B nonimmigrant workers from entering the country or imposing restrictions on the H-1B program is not in the U.S. national interest.
The Trump Administration has not disclosed the specific measures it will take to restrict the H-1B program or other nonimmigrant visa programs. However, there are reports that the Trump Administration is considering the idea of only allowing H-1B workers to enter the U.S. if they are being paid a Level 4 wage. This would be harmful as it would require employers to pay the top-level wage rate and limit the number of skilled workers that they would be able to sponsor. A letter sent to President Trump from four U.S. senators (Tom Cotton, R-Arkansas, Ted Cruz, R-Texas, Charles Grassley, R-Iowa, and Josh Hawley, R-Missouri) on May 7, 2020 may also provide insight as to the types of restrictions the Trump Administration may impose. In the letter, the senators urge the immediate suspension of all nonimmigrant guest worker visas for sixty (60) days in order to "protect unemployed Americans in the early stages of economic recovery." Following the sixty-day (60) suspension, the senators request President Trump to suspend certain categories of nonimmigrant guest workers for one year, or until national unemployment figures return to normal levels. H-1B workers, L-1 workers, F-1 students pursuing Optional Practical Training (OPT), as well as other nonimmigrant categories are mentioned in the letter. It is assumed that any restrictions would only affect those foreign nationals seeking to enter the U.S., and not those foreign nationals already present in the U.S. in valid nonimmigrant status.
The H-1B program has been the center of focus by certain lawmakers and elements within the Trump Administration for some time, who claim there is fraud and/or abuse with respect to the use of the program, and that action is needed to change or limit the program in order to protect U.S. workers and wages. With the current high unemployment rate in the U.S., some are advocating the time to limit or restrict the H-1B program is now. However, this approach is flawed for the following reasons:
Shortage of Information Technology (IT) Professionals in the U.S.: The U.S. Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) maintains statistics with respect to the number of Labor Condition Applications (LCA) filed with the DOL. Every H-1B petition that is filed with the U.S. Citizenship and Immigration Services (USCIS) requires a certified LCA from the DOL. The LCA is an attestation that the U.S. employer agrees to pay the required wage to the foreign national, has provided notice to workers of the filing of the LCA, there will not be an adverse impact to existing employees by hiring an H-1B worker, along with other attestations. The failure to comply with these attestations could lead to civil monetary penalties or criminal liability, or U.S. employer debarment from the H-1B/LCA program.
DOL's OFLC's statistics for the first and second quarters of the 2020 fiscal year (FY) (October 1, 2019) to September 30, 2020) reveal that of all the LCAs filed with the DOL, seven (7) of the top ten (10) occupational categories were for computer-related occupations. Moreover, the statistics show that of all the occupational categories listed on the LCAs submitted to the DOL for this period, 69.9% were for computer-related occupations. See the following:
(Note: The data also includes LCAs for the H-1B1 and E-3 categories. These are categories similar to the H-1B category, but for foreign nationals from Chile and Singapore (H-1B1) and Australia (E-3) and require the same LCA to be submitted with the petition. The H-1B1 and E-3 categories are categories that do not have high use, as compared to the H-1B category.)
There are similar statistics for the 2019 FY (October 1, 2018 to September 1, 2019), which show six (6) of the top ten (10) occupational categories were for computer-related occupations, and that 62.5% of all LCAs filed with the DOL were for computer-related occupations. See the following:
Why does the data reveal the H-1B category (and H-1B1 and E-3 categories) are being used so heavily to sponsor foreign nationals for computer-related occupations? One answer may be that it is used so heavily, because there are not enough U.S. workers with the knowledge and skills to perform the work in these computer-related occupational categories. Based on the increase in the percentage of LCAs being filed for computer-related occupations between the 2019 FY and the first two quarters of the 2020 FY, it appears there is an increase in demand by U.S. companies.
Lack of Computer Science Degrees Conferred by U.S. Colleges and Universities: Only 34% of the U.S. population age 25 and older have earned a bachelor's degree, according to the U.S. Census Bureau. Within this small percentage of Americans who have earned a bachelor's degree, even fewer have a bachelor's degree in a computer-related field. This is evident from statistics from the U.S. Department of Education's (USDE) Institute of Education Sciences' (IES) National Center for Educational Statistics (NCES). IES is the statistics, research, and evaluation arm of the U.S Department of Education. The statistics provided by the IES for the most recent year (2017-2018) in which data is available indicate that over 1.9 million bachelor's degrees were issued by U.S. colleges and universities. Of the over 1.9 million bachelor's degrees conferred, only 79,598 were in computer and information sciences. As a result, only 4% of all bachelor's degrees conferred were in the computer and information sciences. Statistics for prior years going back to 1970 show even lower levels of bachelor's degrees in computer and information sciences conferred. See the following:
https://nces.ed.gov/programs/digest/d19/tables/dt19_322.10.asp
It is important to note that some of the bachelor's degrees conferred by U.S. colleges and universities over the years may have been to international students. As a result, the number of bachelor's degrees conferred in the field of computer and information sciences by U.S. colleges and universities to U.S. citizens are certainly less than the statistics represent. Furthermore, given that individuals retire every year in computer-related occupational categories, and some graduates may not pursue a career in a computer-related occupation who have been issued a bachelor's degree in a computer and information sciences field, this further supports the notion that U.S. colleges and universities are not producing enough Americans with the knowledge to work in computer-related occupations to meet the needs of U.S. employers.
The IES also provides statistics on the number of associates degrees conferred by post-secondary institutions. The statistics provided by the IES for the most recent year (2017-2018) indicate that over 1 million associates degrees were issued by U.S. post-secondary institutions in that year. Of the over 1 million associates degrees conferred, only 31,479 were in computer and information sciences. As a result, only three percent (3%) of all associates degrees conferred by post-secondary institutions are in computer and information sciences. See the following:
https://nces.ed.gov/programs/digest/d19/tables/dt19_321.10.asp
Statistics for prior years going back to 2007-2008 show, on average, approximately the same number issued each year in computer and information sciences.
Low Unemployment Rate for IT Professionals in the U.S. Currently and Prior to the COVID-19 Pandemic: Statistics issued by the DOL's Bureau of Labor Statistics (BLS) reflect the unemployment rate for computer-related occupations was low prior to the COVID-19 pandemic and continues to remain low. The fact the unemployment rate for computer-related occupations continues to remain low, as compared to other occupational categories is evidence there is a shortage and/or demand for individuals with computer science knowledge and skills. According to BLS statistics, the unemployment rate in April 2019 and April 2020 for computer and mathematical occupations was 2.4% and 4.3%, respectively. Other occupational categories, which had low unemployment rates prior to the COVID-19 pandemic now have very high unemployment rates. For example, food preparation and serving related occupations went from 4.9% in April 2019 to 41.8% as of April 2020; personal care and service occupations went from 3.7% in April 2019 to 39.3% as of April 2020; and production occupations went from 3.8% in April 2019 to 18.6% as of April 2020. Healthcare practitioners and technical occupations went from 1.2% in April 2019 to 6.8% as of April 2020, which is surprising given the demand for healthcare practitioners to treat COVID-19 patients. These statistics clearly show the high unemployment rate in the U.S. is due to high unemployment rates in non-computer-related occupations. Computer-related occupations had one of the lowest unemployment rates in the U.S. See the following:
https://www.bls.gov/web/empsit/cpseea37.htm
A recently released policy brief from the National Foundation for American Policy reveals that the unemployment rate for computer occupations dropped from 3.0% to 2.8% from January 2020 to April 2020; in the same period, all other occupations saw the unemployment rate skyrocket from 4.1% to 15%.1 These statistics show the demand for people with computer science knowledge is unwavering, even in a pandemic, which has caused massive unemployment in other occupational categories. As a result, suspending entry of H-1B nonimmigrants or implementing an excessive wage requirement, which make the H-1B program unusable for U.S. employers that have a need for IT professionals would not have a positive impact on reducing the high unemployment rate in the U.S., improving economic recovery, and would only cripple efforts to meet U.S. demand for IT professionals.
Shortage of Professors to Teach Computer Science Courses at U.S. Colleges and Universities: The Association for Computing Machinery (ACM), the world's largest educational and scientific computing society, which provides resources to advance computing as a science and a profession, published an article by Esther Shein entitled, "The CS Teacher Shortage." The article indicates there is a shortage of qualified teachers in secondary education. See the following:
https://cacm.acm.org/magazines/2019/10/239667-the-cs-teacher-shortage/fulltext
Other publications and organization have also noted the shortage of computer science professors at U.S. colleges and universities. See the following:
https://www.nytimes.com/2019/01/24/technology/computer-science-courses-college.html
The fact there is a shortage of professors to teach computer science courses at U.S. colleges and universities is further evidence of the shortage of people with knowledge of computer science in the U.S., and the inability to impart the necessary knowledge to American students in a timely manner.
Lack of Computer Science Education in U.S. High Schools: Part of the reason there is a shortage of IT professionals in the U.S. is because there is a lack of education offered in U.S. grade schools and high schools in computer science. While the U.S. government and various states are trying to invest in and promote coursework in the sciences, technology, engineering, and mathematics (STEM), statistics show only 45% of high schools teach computer science, according to the 2019 State of Computer Science Education Equity and Diversity report produced by Code.org Advocacy Coalition, a movement to make computer science a fundamental part of K-12 education, the Computer Science Teachers Association (CSTA), a membership organization that supports the teaching of computer science, and the Expanding Computer Education Pathways (ECEP) Alliance, an alliance funded by the U.S. National Science Foundation (NSF). See the following:
https://advocacy.code.org/2019_state_of_cs.pdf
The fact computer science is not taught on a widespread basis in U.S. high schools is part of the reason for a lack of IT professionals in the U.S., and the reason the H-1B program is used so heavily by U.S. employers to meet their needs.
The only way for U.S. employers to meet their workforce needs is to address this in the schools and to continue to expand training in the U.S. of U.S. workers, which takes time and money, bring more IT professions to the U.S. through nonimmigrant programs, or outsource the IT work to workers in other parts of the world. Since the U.S. appears to be lagging behind in STEM education, and the demand for IT professionals to perform work is immediate, use of the H-1B program is the best method to meet the needs of U.S. employers.
Serious Shortage of IT Professionals in the U.S. and Worldwide in Cybersecurity: The DOL's BLS has indicated that employment in the computer and IT occupations is expected to grow 12 percent annually from 2018 to 2028, much faster than the average for all occupations.2 The BLS indicates that the demand for these workers will stem from greater emphasis on cloud computing, the collection and storage of big data, and cybersecurity. See the following:
https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm
Besides a growing demand for workers to fill IT occupations in the U.S. in the future, there are reports that there is perhaps an even greater global shortage of IT professionals in cybersecurity. According to the Center for Strategic International Studies (CSIS), "82% of employers report a shortage of cybersecurity skills, and that 71% believe the talent gap causes a direct and measurable damage to their organization." According to CyberSeek, an initiative funded by the National Initiative for Cybersecurity Education (NICE), the United States faced a shortfall of almost 314,000 cybersecurity professionals as of January 2019. To put this in context, the country's total employed cybersecurity workforce is just 716,000. According to data derived from job postings, the number of unfilled cybersecurity jobs has grown by more than 50 percent since 2015. By 2022, the global cybersecurity workforce shortage has been projected to reach upwards of 1.8 million unfilled positions." See the following:
https://www.csis.org/analysis/cybersecurity-workforce-gap
Other organizations and publications are reporting the same shortage of IT professionals in the area of cybersecurity:
https://cybersecurityventures.com/jobs/
The shortage of IT professionals in the area of cybersecurity poses a serious threat to U.S. businesses and the country. There is a battle for IT talent. As a result, limiting the use of the H-1B category to bring IT professionals to the U.S. would exacerbate an already growing problem.
The H-1B Program has a Positive Impact on the U.S. Economy: Studies on H-1B nonimmigrant workers have shown that H-1B workers do not have a negative impact on American workers. The American Immigration Council (AIC) issued a fact sheet on April 2020 highlighting recent research showing that H-1B workers contribute significantly to the U.S. economy.3 H-1B workers fill in critical gaps in many Science, Technology, Engineering, Mathematics (STEM) occupations, particular in computer science-related occupations, as shown by data from the Bureau of Labor Statistics (BLS) showing low unemployment rates for certain occupational categories that have high use of the H-1B program. In addition, academic studies have shown that "high-skilled immigrants have the potential for opening up opportunities for US workers . . . ."4 The AIC report concludes that an increase in H-1B visas could create an estimated 1.3 million new jobs and add around $158 billion to the U.S.'s gross domestic product by 2045. This indicates that limiting the number or admission of H-1Bs would not only hamper job growth and the recovery but could put existing US jobs at risk. Moreover, studies have shown the companies have responded to restrictions on H-1B visas by increasing employment at their foreign affiliates rather than expanding operations in the U.S.5 Academic studies have borne this out, with one in-depth study arguing that "in an increasingly global world, US restrictions on the hiring of foreign high-skilled workers are likely to result in greater foreign outsourcing work by U.S. employers."6
The H-1B Program is a Positive Force for American Innovation and Competitiveness: There have been many studies that have shown the H-1B program is a positive force for American innovation and competitiveness. A recent study published in May 2020 indicates that restricting immigration will hinder America's ability to compete and innovate.7 In a survey of Harvard Business School alumni indicated that "immigrants were critical for developing better products and services, increasing the quality of innovation, and reaching international customers."8 The Trump Administration's rhetoric and policy have made it increasingly difficult for these U.S. entrepreneurs to attract highly skilled talent.
High Level of Review, Compliance, and Enforcement Measures within the H-1B Program: Those critical of the H-1B program assert there is a high level of fraud and abuse with the program. This is not accurate. The H-1B program has in place multiple review, compliance and enforcement mechanisms to protect U.S. workers and wages, which most of the public is unaware, and include the following:
- LCA Posting and H-1B Public Access File Requirements: Before an H-1B petition is filed with the USCIS, a U.S. employer must first obtain a certified LCA from the DOL. Before the LCA is filed with the DOL, the U.S. employer must post the LCA or notice of the filing of the LCA to workers at the location where the work is to be performed with information about the position described on the LCA, including the wages to be paid. [H-1B workers must be paid at least the higher of the prevailing wage or actual market wage.] This notice provides an opportunity for U.S. workers to inquire about the position and file a complaint with the DOL if they believe there is any violation. In addition, a U.S. employer is required to make available a file for each LCA filed with the DOL for public inspection. This H-1B public access file provides information about the position, and, again, provides information as to how a person may file a complaint with the DOL, if he or she believes there is an issue with the H-1B employment, wages, etc. Other nonimmigrant guest worker programs do not have these features.
- LCA Fines and Penalties: When LCA violations are found by DOL's Wage and Hour Division, back wages and civil monetary penalties may be imposed on the H-1B employer. In some cases, criminal penalties and debarment may be imposed. With respect to civil monetary penalties, the maximum penalty amount per each violation is the following: $1,928.00 (substantial violations regarding LCA notice posting, violations pertaining to strikes or lockouts, etc.) and , $7,846.00 (willful failures pertaining to wages and working conditions, willful misrepresentation of a material fact, etc.), and $54,921 (willful violations resulting in displacement of U.S. worker by the employer 90 days before and ending 90 days after the filing of an H-1B petition, willful violations pertaining to working conditions, wages, etc.). See the following: https://www.dol.gov/agencies/whd/immigration/h1b#cmp. As indicated, these civil monetary penalties that may be imposed are per violation, and act as a deterrent against impropriety.
- H-1B Debarment List: The DOL's Wage and Hour Division maintains a list of willful violator employers of the H-1B/LCA program. https://www.dol.gov/agencies/whd/immigration/h1b/debarment As you can see from the list, the number of U.S. employers listed is quite short. There are currently only nine (9) employers listed out of the many thousands of H-1B sponsors and historic data indicates similar trends over past years. This indicates that far less than 1/1000th of sponsors are willful violators. Further, USCIS found that of the small fraction of companies with violations (whether willful or not), most had fewer than 25 employees and revenues of less than $10 million.9 U.S. employers comply with the LCA and other H-1B requirements and appropriately pay their H-1B workers. If H-1B employers did not, then the list would be much longer.
- USCIS On-Line Procedure to Report H-1B Fraud and Abuse: In 2017, the Trump Administration began implemented new ways for the public to report allegations of H-1B fraud and abuse that now includes an on-line procedure as well. To date, though, there have been no reports issued or evidence given by Administration officials of fraud or abuse in the program. See https://www.uscis.gov/report-fraud/combating-fraud-and-abuse-h-1b-visa-program.
- The H-1B Program is a Highly Monitored and Scrutinized by Multiple U.S. Government Agencies: The U.S. government has put in place numerous limits on the H-1B visa programs and monitors the program scrupulously. First, the H-1B program is capped at a maximum of 65,000 eligible applicants (plus an additional 20,000 for holders of graduate degrees) and this cap has been consistent since 2004. Historically, H-1B cap petitions (excluding extension petitions) have been subjected to a lottery if the number of petitions exceeded the cap; this is to ensure that no one petitioner receives preferential treatment. Recently, the USCIS added a new step to the H-1B petitioning process by creating a registration program for all applicants that must be completed to be eligible for the lottery. Moreover, in order to be issued a new H-1B visa to work in the U.S., multiple government agencies are involved in the review and approval process, which includes DOL, USCIS, U.S. Department of State (DOS), and U.S. Customs and Border Protection (CBP).
A U.S. employer begins the H-1B process by posting the LCA or notice of the filing of the LCA for public review and, once posted, files an LCA with the DOL. Once the LCA is certified by the DOL in approximately ten (10) days, the U.S. employer files an H-1B petition on behalf of the foreign national with the U.S. Citizenship and Immigration Services (USCIS). Once the petition is reviewed by the USCIS and the USCIS is satisfied with the information contained in the petition, the foreign national applies for an H-1B visa at a U.S. embassy or consulate. Once the U.S. embassy completes its review of the visa application and supporting documentation, the H-1B visa is issued. The foreign national then take the visa, travels to the U.S., and applies for admission at a U.S. port of entry, where, once again, a CBP officer reviews the case. In addition, even after being admitted into the U.S., USCIS has an H-1B site visit program in which officers appear at the work location listed on the H-1B petition to verify the H-1B worker is performing work consistent with what was described in the H-1B petition and being paid consistent with the required wage listed on the LCA. Furthermore, DOL's Wage and Hour Division may conduct separate investigations, if complaints are received from the USCIS or the public, etc. in connection with LCA wage or working condition violations, etc.
The H-1B program is arguably one of the most monitored nonimmigrant visa programs in the U.S. If there was widespread fraud and abuse, the number of U.S. employers debarred from the program and/or listed on the debarment list would swell, and media reports of wage violations, resulting in the imposition of large fines, as well as criminal prosecution, would be frequent. The fact the debarment list is short and media reports of wage violations are infrequent, suggest 1) the above government agencies are doing their job, 2) the review and enforcement measures that are in place are effective, and 3) virtually all, but some smaller U.S. employers abide by all relevant US laws and regulations for the H-1B program.
What is needed at this time by U.S. lawmakers and U.S. Administration officials is a more thoughtful approach -- An in-depth examination of the current unemployment problem in the U.S., balanced with the needs of the U.S. for skilled professionals, particularly people with computer science, engineering, and other specialized knowledge, rather than a blanket policy to suspend the H-1B program entirely or limit it to only those who are paid extremely high wages. The U.S. has maintained its position as a global superpower, because of its technology. The technology advantage the U.S. has enjoyed is due, in part, to the flow of IT and other skilled talent into the country, and the H-1B program is one of the major means used to bring this IT talent to the U.S. There is a battle for this talent in the world by countries and businesses. Given the fact the U.S. is not graduating enough people with computer science or engineering degrees, and the fact there is a global shortage of IT talent, particularly in cybersecurity, and given there is a growing need for better, faster computer systems to operate our businesses; improve our ability to connect with one another as more of us learn to work remotely; secure and protect our financial transactions and our personal information, as well as develop new high-tech products, IT professionals are needed in the U.S. now more than ever. Limiting the ability of U.S. employers to bring talented IT professionals to the U.S. through the H-1B program, on the basis of high unemployment in non-IT occupations, caused by a global pandemic that occurs once a century, would be a mistake. It would hurt the U.S. economic recovery in the long run and stifle the type of innovation that has helped the U.S. maintain its leading position in the world.
Footnotes
1. https://nfap.com/wp-content/uploads/2020/05/Analysis-of-Employment-Data-for-Computer-Occupations.NFAP-Policy-Brief.May-2020.pdf
3. "The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages, and the Economy." American Immigration Council, April 2020: https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet
4. John Bound, Gaurav Khanna, and Nicolas Morales. "Understanding the Economic Impact of the H-1B Program on the United States." In G.H. Hanson, W.R. Kerr, and S. Turner, eds. High-Skilled Migration to the United States and Its Economic Consequences (University of Chicago Press, 2018), p. 162.
5. American Immigration Council.
6. John Bound, Gaurav Khanna, and Nicolas Morales," p. 111.
7. William R. Kerr. "Immigration Policies Threaten American Competitiveness." Harvard Business School, Working Knowledge: May 11, 2020: https://hbswk.hbs.edu/item/immigration-policies-threaten-american-competitiveness
8. Kerr. "Immigration Policies Threaten American Competitiveness."
9. Please see U.S. Citizenship and Immigration Services. H-1B Benefit Fraud & Compliance Assessment. (Washington, D.C.: USCIS, 2008), p. 14. Available as AILA Infonet Doc. No. 08100965.
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