To Get the ‘Best and Brightest’ H-1B Workers, the U.S. Must Reform the Program

The H-1B visa program, designed for skilled workers from abroad, needs improvements that do not involve increasing the number of visas. The current implementation often allows companies to replace American workers with cheaper foreign labor, undermining the program’s original intent.

1. Program Misuse:

• The H-1B program is used by many U. S. companies to replace local workers with foreign labor, particularly by outsourcing firms and large tech companies in Silicon Valley.

• There are no effective safeguards against this practice, leading to minimal protection for American workers.

2. Weak Protections for U. S. Workers:

• Many believe that hiring foreign workers through the H-1B program is prohibited if it displaces American jobs. However, the legal protections in place are quite weak.

• Employers only need to file a Labor Certification Application (LCA) without standard requirements to prove that they are not displacing U. S. workers or tried hiring domestically first.

3. LCA Approval Requirements:

• To get an LCA, employers must merely attest to four basic points, such as paying prevailing wages, not harming current workers’ conditions, and informing their employees of the application.

• Only “H-1B-dependent” employers face slightly stricter rules, but loopholes allow many employers to bypass crucial protections.

4. Exemptions and Lack of Enforcement:

• Most employers claiming exemptions from H-1B-dependent rules do so, illustrating that these protections are not effectively enforced.

• Simply "attesting" to facts within LCA applications does not equate to robust verification.

5. Underpayment of Foreign Workers:

• The law requires employers to pay H-1B workers the higher of the actual wage or the prevailing wage for their position. However, many H-1B workers are paid at lower wage levels than the average in their field.

• This leads to a scenario where employers save money by hiring H-1B workers at lower wages than American workers, particularly for entry-level or less skilled positions.

6. Potential Reforms:

• To improve the situation, reinstating a previously suggested rule to select the highest-paid H-1B petitions when demand exceeds supply could help ensure that the most skilled workers are hired.

• It would be beneficial to mandate that companies prioritize retaining American workers over nonimmigrant workers and to remove current restrictions on displacement periods.

Reforming the H-1B program with small yet impactful adjustments can improve labor practices and protect both American workers and foreign talent. Changes such as stricter requirements for employer attestations and modifying the wage conditions could help maintain the program’s original objectives while supporting U. S. businesses in accessing skilled labor effectively.

https://cis.org/Jacobs/Get-Best-and-Brightest-H1B-Workers-US-Must-Reform-Program