Can we make H-1B visas great again?

By U.S. Immigration Attorney Seth Finberg

January 2, 2025

There is a "Yuge" H-1B visa debate if not an online war of words going on regarding U.S. immigration and the H-1B visa program. Trump advisors Elon Musk and Vivek Ramaswamy started an online spat with their strong support for H-1's and other high skill visas where many conservative influencers on the other side oppose them. Opinions vary on all levels of immigration but specifically there are differing views on what those in our industry call "high-skilled immigration" or "employment-based immigration".

Musk and Ramaswamy not only strongly support our current H-1B program but even have suggested expanding it. For those who don't know, an H-1B visa is a work visa that requires you to have a job in a "specialty occupation". These are jobs that require an employer sponsor and a salary paid in a Department of Labor approved prevailing wage. There are only 85,000 H-1B visas awarded each year, but we likely have several hundred thousand foreign employees working in H-1B status throughout the United States at any given time (as the visas typically last between 3 - 6 years).

Why is there controversy?

• There are those who feel H-1B visas and other work visas such as O-1s, H-2As, and H-2Bs are harmful to the Domestic labor market.
• There are those who feel foreign workers are exploited and even severely underpaid while on work visas.
• There are also those who are uncomfortable with immigration at any significant level, even to support work-based immigration in fields or industries where the need is great and shortages continue to grow.
• Yet there are many who offer opinions without proper knowledge of the facts or subject areas.

Vivek Ramaswamy offered controversial but possibly needed insight on why we need to change things culturally in America. Vivek stated, "A culture that celebrates the prom queen over the math Olympiad champ, or the jock over the valedictorian, will not produce the best engineers". Many believe he is correct. Sometimes the truth hurts. Interestingly, as a high school football coach I would have made Ramaswamy proud because on 2 occasions I coached football players who were both their class Valedictorian and 1st team starters (tight end and offensive guard). Both young men went on excel at Ivy League schools too.

One of the reasons we need H-1B visas is the shortage of talented U.S. workers in the tech fields. Not enough Americans go into high tech and STEM fields to satisfy our domestic labor market. We produce plenty of real estate agents, life coaches, and (sadly) attorneys but not enough graduates in the hard sciences or computers. Our tech industry for years has relied on H-1B visas to offset shortages of qualified workers. Countries such as India and China produce an excess of impressive STEM talent. India supplies over 7 out of every 10 H-1B visas and China constitutes another 10-15%.

H-1B visas are not designed to solve U.S. shortages in key industries. They were designed to supplement jobs in certain hard to fill positions. We still need to produce enough domestic talent. We still need to encourage all Americans (especially women) to go into the STEM fields of Science, Technology, Engineering, and Mathematics. One reason for the annual H-1B lottery is that hundreds of thousands of qualified foreign workers wish to work in H-1B jobs. If desired, we could expand the H-1B program and be able to attract even more tech talent.

H-1B workers are not a drain on the U.S. economy. H-1B workers are educated, paid good wages, pay taxes, and work in key industries that usually have labor shortages. At least 20,000 of the 85,000 H-1Bs have U.S. Masters degrees and all must have at least a Bachelor's degree or equivalent. Most objective onlookers should at least support offering some H-1B visas to keep top graduate level talent in the U.S. Don't forget, those additional H-1s who are working in cap-exempt status are performing key functions for educational and approved non-profit programs affiliated with universities.

It is true that many U.S. companies would rather hire an entry level foreign graduate on an H-1B than keep an employee who has 5-10 years of experience just to save money. It is also true that the same U.S. company would likely prefer to hire a U.S. entry level graduate as well to improve their bottom line. This is a problem with business and economics and not necessarily immigration.

H-1B visa are NOT designed to replace U.S. workers with cheaper foreign alternatives. H-1B jobs are required to pay at least the prevailing wage as determined by the U.S. Department of Labor. H-1B wages are measured by industry, experience levels, and metropolitan statistical area (MSA). An H-1B employer must pay at least the approved prevailing wage and they can always pay more. The prevailing wage is not the same as the minimum wage either. It typically is measured in an hourly rate (such as $29.50 an hour) or an annual salary such as $59,000. I always encourage my H-1B clients to offer more than the prevailing wage for 2 reasons. 1) Raises the chances of H-1B visa approval and 2) they can attract better foreign talent with a higher salary.

It is important to remember that H-1B visas do not lead to jobs being outsourced. If a company decides to outsource jobs they will ship those jobs overseas altogether. Instead of paying foreign workers the prevailing U.S. wage, they can potentially pay foreign workers pennies on the dollar working in overseas centers. Let's not forget, most jobs that are outsourced would not qualify as H-1B specialty occupations.

Foreign workers might jump at the chance to earn a U.S. prevailing wage and at the same time have an H-1B visa with the chance to get sponsored for a green card. American workers don't need the added incentive to be offered the "Green Card Grape" Citizenship Carrot. However, U.S. Immigration benefits are one great way to attract top foreign talent. Reducing or eliminating H-1B visas will stop some of the top foreign STEM talent from ending up Stateside.

H-1B workers are also great risk takers. Did you know that if an H-1B employee loses his or her job they not only become unemployed but they will lose their visa and legal status? U.S. Immigration Law only allows for a 60 day grace period to find a new H-1B job or change to a different visa status. Generally not enough time. Therefore Industry layoffs and downsizings are double dangerous Swords of Damocles for foreign workers.

One the bright side, immigrants play a major role in U.S. Entrepreneurship. Have you heard of Unicorns? A Unicorn is startup company worth over 1 billion dollars. Almost half of all unicorns have a foreign-born founder. Now not all foreign unicorn founders came to the U.S. on H-1Bs, but many certainly did. Elon Musk is a great example of one and there are too many others to name in this article. Our university system would also suffer if reduced or eliminated the H-1B program. So many top foreign students study in the States with the hope to earn one of those precious H-1B visas. Without the H-1B pathway, many of these students would stop attending our schools if they had reduced chances of landing a job and a required visa.

While we produce plenty of talented athletes and entertainers, the best of the best from the rest of the world will always want to gravitate Stateside to play and perform. This is another reason we have talent visas such as the O-1A or the EB-1A green card. Top entrepreneurs, researchers, inventors, and innovators can explore other visa options outside of the limits of the H-1B lottery. Elon Musk supports creating more employment-based or EB green cards but that is a topic for another article.

What will the new Trump Administration do? How will they handle the hot H-1B issue? How will all employment-based visas and green cards be evaluated over the next 4 years? Uncertainty is always one of the biggest stress creators in our industry.

Let's debate. Opinions will always vary, however, let's debate professionally, constructively, and with all the appropriate facts.

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