President Donald Trump has said he wants to halt immigration while Americans face staggeringly high unemployment levels as a result of the coronavirus pandemic — including temporary visas for skilled foreign workers and for foreign students who went to college in the US.
More than 85,000 immigrants get H-1B visas for skilled workers annually, including more than 1,000 apiece for workers at tech giants such as Google and Amazon. The demand for these visas consistently outstrips the supply.
But the New York Times reported Trump is considering barring the issuance of new visas in certain employment-based categories, including H-1B visas, as well as ending the Optional Practical Training program, or OPT, which allows foreigners on student visas to work in the US for up to three years post-graduation depending on their field of study.
If Trump moves forward with that plan, it would disrupt the job search for immigrant workers who rely on these programs and who, for the most part, have no other avenue of pursuing a career in the US. Many employers would face challenges filling positions requiring specialized skills, particularly in STEM fields where there are well-documented labor shortages, that help drive economic expansion and create jobs for native-born workers.
Republican lawmakers are pushing Trump to suspend the H-1B and OPT programs for a year or until the unemployment rate, which has reached almost 15 percent, returns to a normal level.
“Given the extreme lack of available jobs for American job-seekers as portions of our economy begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment,” Sens. Ted Cruz, Tom Cotton, Chuck Grassley, and Josh Hawley wrote in a letter to the White House on May 7.
The programs have their flaws, but shutting them down likely won’t help the vast majority of job-seeking Americans during this crisis. There have been cases of employers exploiting the programs to displace American workers, usually in IT fields, which haven’t seen relatively high job losses compared to other industries. Lawmakers in both parties agree that practice should be prohibited through reforms.
But ending the programs entirely would create uncertainty for employers who are facing a legitimate gap in their workforce, as well as the Americans they employ. US universities, research institutions and the business community, which all rely on these programs, have consequently lobbied against Republicans’ proposal, but it’s not clear whether the White House will heed their concerns.
Trump ordered the administration to publish an interagency report on these visas, which was due Friday and may help justify any action he plans to take. Still, congressional aides say they’re skeptical that this administration, which has historically deferred to business interests on immigration issues, will follow through on shutting down the H-1B and OPT programs entirely.
Experts say that amending the programs to ensure foreign workers don’t displace Americans is preferable to ending them. Lawmakers in both parties have sought such reforms to the H-1B program for more than a decade, and Sens. Dick Durbin and Chuck Grassley reintroduced related legislation on Friday.
Trump’s mixed record on high-skilled immigration
Since his 2016 campaign, Trump has both railed against the H-1B program — which he said suppresses American wages and employment rates and is rife with employer abuse — and warned about a brain drain of foreign graduates.
“They’ll go to Harvard, they’ll go to Stanford, they’ll go to Wharton, as soon as they’re finished they’ll get shoved out,” he said in 2016. “They want to stay in this country. They want to stay here desperately, they’re not able to stay here. For that purpose, we absolutely have to be able to keep the brain power in this country.”
Once in office, Trump advocated for creating a “merit-based” immigration system that would favor the same kind of immigrants who currently benefit from the H-1B and OPT programs — those with valuable skills, offers of employment, advanced degrees, and higher wages — over those with family ties to the US. But he also signed the “Buy American and Hire American” executive order in April 2017 that increased scrutiny of H-1B applicants and resulted in a spike in denials, and has been considering a regulation ending the OPT program for years.
This inconsistency might be explained by Trump’s desire to simultaneously satisfy both the anti-immigration and pro-business wings of Republican party, which are often on opposite sides of the debate over high-skilled immigration. At the outset of the pandemic, Trump proposed halting the issuance of all work visas, but the New York Times reported he ultimately decided against it after pushback from business groups.
The US needs high-skilled foreign talent
The H-1B and OPT programs are pipelines for foreign talent, particularly in the fields of computer science, engineering, education, and medicine.
The application process for H-1B visas is expensive, costing about $10,000 per worker, usually paid by an employer. But without these visas, many companies argue they would face difficulty filling jobs that require specialized skills or degrees. The business community has consequently lobbied Congress to increase the cap on H-1B visas in recent years.
Post-graduate training through OPT can be a stepping stone to an H-1B for many foreign graduates of US universities, particularly in STEM fields. In 2019, the government received a record 220,000 requests for OPT, according to data from US Citizenship and Immigration Services.
For foreign students deciding to attend American universities, the prospect of being able to work in the US post-graduation is a major draw. According to the National Science Foundation, most foreign students on OPT choose to remain in the US and become contributing members of the scientific workforce.
“It’s especially important to safeguard international experts and students and scientific research during a public health emergency that requires experts to constructively work together to ensure the safety and health of people everywhere,” Benjamin Corb, public affairs director for the American Society for Biochemistry and Molecular Biology, said in a statement.
Absent the ability to work post-graduation, foreign students might decide against choosing to attend school in the US, which would be devastating to American universities who rely on their tuition. Universities were already feeling the pinch in recent years with a decline in enrollment among foreign students, who tend to pay more in tuition than Americans, generating a total of $39 billion in revenue. That could hurt the quality of US higher education more broadly, universities have argued.
H-1Bs and OPT are vulnerable to abuse
While many businesses are facing a legitimate gap in their workforce and pay their skilled foreign workers a fair wage, some employers have used H-1Bs and OPT to fill positions cheaply — sometimes at the expense of American workers.
Federal guidelines say the H-1B program should not “adversely affect the wages and working conditions” of Americans. The question of whether H-1B workers are generally underpaid and drive down American wages has proved difficult to answer, spurring disagreement among researchers. But it’s clear that employers have, in fact, been able to use the H-1B program to displace Americans.
Most employers aren’t required to show that they have advertised a job to Americans and that there are no qualified Americans available to fill the position before hiring an H-1B worker. That has allowed companies ranging from Disney to the electric utility Southern California Edison to the coronavirus antibody test producer Abbott Labs to lay off US workers and replace them with H-1B workers with lower salaries — in some cases, even ordering the US workers to train their replacements.
Often, companies will use outsourcing firms that bring in employees, primarily from India, on H-1Bs to fill IT positions. The largest of these firms, Tata Consultancy Services and Infosys, consistently receive more H-1Bs than even the largest US tech companies.
These practices are all perfectly legal. But they have ignited a debate over whether the H-1B program is operating as it was intended and complementing rather than competing with the American workforce.
“The H-1B is an important pathway to bring skilled people here,” Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, said. “But I do think that the way it’s used is one big corporate loophole. We should regulate it in a way that’s fair to both the US workers who should have a shot at applying and then the migrant workers who are coming in through no fault of their own, being underpaid and used as pawns.”
The OPT program has even less regulation. There is no set minimum wage level for OPT workers, which means that a foreign graduate could be working a full-time job but paid nothing or close to nothing.
Employers similarly don’t have to show there are no qualified Americans available before hiring someone on OPT, though a 2019 National Foundation for American Policy study by economist Madeline Zavodny found “no evidence that foreign students participating in the OPT program reduce job opportunities for U.S. workers.” In fact, the study found that the more foreign students approved for OPT in STEM fields, the lower the unemployment rate among US workers in those fields.
Both Republicans and Democrats have embraced reform efforts
Grassley and Durbin reintroduced a bill on Friday that would clamp down on outsourcing companies that rely on H-1Bs and ensure that companies have to look for qualified American candidates before hiring H-1B workers.
The bill, identical to one they introduced in 2017, is being cosponsored by Sens. Bernie Sanders and Richard Blumenthal and has a companion in the House. The first version of the bill was introduced in 2007.
The bill would prohibit replacing American workers with H-1B recipients and bar companies from laying off American workers for 180 days before and after hiring an H-1B worker.
It would also change how H-1B visas are allocated, eliminating the lottery system by which recipients of the visas are currently selected and creating a “preference system” in its place. Foreign graduates of US universities, advanced degree holders, those with high salaries and those with valuable skills would be prioritized.
It would also require that all employers show they have made good-faith efforts to recruit Americans and that none were available prior to offering an H-1B recipient a job — a requirement that employers hiring students on OPT should also face, Costa said.
These restrictions would make it much harder for outsourcing firms to dominate the H-1B program and free up visas for good-faith employers who have been shut out of the program, Grassley and Durbin have argued.
“[These reforms] improve access to the best and brightest foreign workers, guard against exploitation of foreign workers and prevent more American jobs from being shipped overseas,” Grassley wrote in Fortune in 2017. “And most importantly, they put Americans first — a common refrain from President Trump.”
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