Lottery Tickets Sold Out: Proposed Amendments to the H-1B VISA Program

On January 20, 2017, Senate Bill 180 was introduced with the stated purpose of reforming and reducing fraud and abuse in certain visa programs for aliens working temporarily in the United States.[1] The H-1B program is designed for employers seeking to hire nonimmigrant aliens in specialty occupations.[2] A specialty occupation is defined as “one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.”[3] The Department of Labor suggests that the H-1B provisions help employers that struggle to find desired business skills and abilities within the U.S. workforce. However, many foreign students see the H-1B visa as a final opportunity to remain in the country.

The U.S. workforce may be lacking, or higher education may just be a golden ticket to stay in the country. But the odds are stacked. “There are currently only 85,000 visas available under the H-1B category and that cap has not been lifted since 2005.”[4] That was almost a one in three chance of obtaining a H-1B visa for the 233,000 applicants that sought to stay in the country in 2015.

Much of the gamble may be eliminated if Senate Bill 180 is enacted. Among the new provisions, is a new allocation scheme for granting the limited number of annual H-1B visas.[5] Under the Bill, there are eight tiers of priority consideration for H-1B visas. First, those who have earned an advanced degree in science, technology, engineering, or mathematics (“STEM”) from an accredited U.S. school will be considered. Second, those who will earn a salary of a level 4 wage, as defined by the Department of Labor, will be considered. Third, those who have earned an advanced degree in non-STEM fields will be considered. In the unlikely chance that there are any visas left, fourth those earning a level 3 wage, fifth those with a bachelor’s degree in a STEM field, sixth those with non-STEM bachelor degrees, seventh those in particular occupations listed by the Department of Labor, and finally eighth special petitions from employers will be considered.[6]

The true effects of such a law is of course not yet known. Will such a law reduce fraud and abuse of the visa program? Will more foreign students get more degrees to be considered first? “The number of immigrants with higher education has grown at more than twice the rate of the same population among the U.S. born.”[7] Foreign students’ education is already concentrated in STEM fields. In 2014, immigrants represented 32 percent of computer programmers, about 30 percent of health-care support professionals, and almost 26 percent of physicians.[8]

As the demand for H-1B visas steadily increases each year, it seems that a change in the allocation scheme will only change enrollment numbers.

[1] S. 180, 115th Cong. § 1 (2017).

[2] H-1B Program Overview, Wage and Hour Division, United States Department of Labor, https://www.dol.gov/whd/immigration/h1b.htm (last visited August 25, 2017).

[3] Id.

[4] Evangeline M. Chan, Our Immigration Policies Are Telling Foreign Students To ‘Get Out’ After They Graduate, Forbes Magazine (June 8, 2015), https://www.forbes.com/sites/realspin/2015/06/08/graduating-congratulations-now-get-out/#414f1a1b4771.

[5] S. 180, 115th Cong. § 104 (2017).

[6] Id.

[7] Jie Zong & Jeanne Batalova, College-Educated Immigrants in the United States, Migration Policy Institute (February 3, 2016), https://www.dol.gov/whd/immigration/h1b.htm.

[8] Id.