Lift the H-1B Cap to Benefit U.S. Employers and U.S. Workers

You can almost hear it. The rumble of trucks, the beep beep beep as they back up, the air pressure release hisssssss as they park. It’s not a monster truck rally, it’s delivery week for H-1B petitions to U.S. Citizenship and Immigration Services (USCIS) processing centers where the fate of tens of thousands of American businesses and, the lives of tens of thousands of their potential employee and their families, hang in the balance. I am describing the first five days of April, the beginning of the H-1B visa lottery process.

You may be confused as to why a temporary employment-based visa process is tied to a lottery. You aren’t the only one. The H-1B lottery is an unintentional side effect created by the cap on H-1B visa numbers. When the economy is fundamentally strong (like now), the 65,000 base number is simply not enough, even with 20,000 additional visas set aside for those holding Master’s degrees or higher from U.S universities. American businesses need to fill workforce needs with skilled talent.

USCIS Director Cissna wrote an op-ed in CNN lauding “two simple changes” that will reduce overall costs for employers, make the program more efficient and cost-effective for U.S. Citizenship and Immigration Services, and increase the chances that these coveted visas go to individuals with an advanced degree from a US institution of higher education. He also states “in each of the last five years, U.S. Citizenship and Immigration Services has received a number of petitions more than double — and sometimes almost triple — the number of available cap-subject H-1B visas.”

I appreciate the government’s desire to make the H-1B program more efficient and to reduce overall costs for employers. I also recognize that the agency can only write and publish regulations. USCIS cannot go outside the bounds of the law. The law limits the number of H-1B visas that are available every year and USCIS cannot change that number. That is the real problem. As we are in the midst of the fiscal year (FY) 2020 H-1B cap filing season, I call on Congress to eliminate the cap on H-1B visa numbers. Let market forces control how many H-1B petitions are filed. We’ve seen demand go down during recessions and up during boom times. The market works.

Lifting the cap would also generate more filing fees from employers to support training programs for U.S. workers. Let’s do some back-of-the-envelope estimates. Looking at the numbers for the FY2019 H-1B cap filing season, there were 199,000 H-1B petitions submitted to USCIS. So, if an additional 114,000 petitions could be accepted, there’d be an additional $128,250,000 immediately in fees directed toward U.S. worker training programs. We’re assuming that half of filers were small employers (who pay $750 per petition) and half were larger (who pay $1,500). That’s an influx of nearly $130 million to workforce training at no extra cost to United States taxpayers.

Another area that would see a dramatic increase in resources were the cap to be lifted is fraud detection. $500 per new petition is allocated to fraud prevention activities, so that would mean approximately $57,000,000 in additional funding for fraud detection assuming the same number of petitions as above. This would allow USCIS to conduct more site visits and other fraud detection efforts, again, at no cost to United States taxpayers.

For additional fraud protection, a whistleblower visa would be a good idea. Right now, H-1B workers who are mistreated do not have a mechanism to complain, unless they are willing to lose their visa and return abroad. If H-1B workers who are mistreated (e.g., the employer does not pay the proffered wage or the employee is improperly benched or the employer engages in fraudulent activity) have a mechanism to report the bad behavior and then self-petition for a 3-year open market work visa (a hypothetical H-1B2 or W visa), the employee would have the ability to report bad actor employers without immediately endangering their own status in the United States. The employee still would need to find an employer to stay in the United States long term (the balance of the six years in H-1B status or a path to lawful permanent residency), but they would have time to get back on track. A self-petition would require credible evidence of the employer’s bad acts, such as copies of paystubs or evidence of funds being reimbursed to the employer showing less than proffered wage being paid, for example.

So, there you have it – lift the cap, help the large and small employers who need employees with these skills to meet workforce demands, build up U.S. workforce training programs, and enhance fraud detection and prevention efforts. That’s a win, win, win, win.

by Doug Penn