How H1-B Law Ties US Citizenship Claim to the Employer

Executive Summary

• Something all proponents of the H1-B program leave out is that it ties the recipient’s citizenship to their employer.
• This gives the employer enormous power over the H1-B recipient.

Introduction

The H1-B program is highly sanitized by corporations looking for cheap labor as well as H1-B attorneys looking to make money from H1-B candidates, and also H1-B recipients. They desperately want to get out of non-white or non-European based countries. However, what is left out by all of these entities is the highly controlling nature of the H1-B program, and this control makes H1-B candidates highly attractive not only for their skills but because they are put under the supervision of their employer, and put under that control for many years. If employers could, they would instantly convert all US citizens so that they could have a nation of controllable employees.

The Tie of the H1-B Visa Holder to The Employer

A person in H-1B status must continue to be employed by their employer in order to stay in H-1B status. If the person’s employment ends for any reason, the person must leave the United States, unless the person applies for and is granted a change of status or finds another employer compatible with the H-1B status. Effective January 17, 2017, the United States Citizenship and Immigration Services allows grace period of up to 60 days to stay in the United States after the person’s end of employment. – Wikipedia

This gives the employer enormous power. Most Indians are petrified of having to go back to India. If an H1-B visa holder loses their job, they may have to go back to India or overstay their visa, which is also a common occurrence.

Exploitive Powers

This feature of U.S. immigration law gives exploitative employers a powerful tool to control their immigrant workers, whose lack of familiarity with the laws and customs of the United States already renders them vulnerable. Aware of this advantage that they hold, some employers believe they can abuse employees with impunity.

For many immigrant workers, who may have borrowed significant amounts of money to come to America, leaving the U.S. early may mean financial ruin at home. U.S. immigration policy, in other words, leaves them no choice but to endure their employers’ abuse.

Hotel housekeepers and construction workers on H-2B visas, nurses and teachers on H-1B visas, and others are susceptible as well.

If the U.S. government wanted to end labor trafficking and modern slavery, a good start would be reforming the country’s immigration laws. Although it’d likely be unpalatable to Americans who are opponents of immigration, immigration law would need to be amended so that an immigrant worker’s status in the U.S. is not bound to a particular employer or agency. – The Atlantic

This will, of course, not happen. It would significantly reduce the appeal of the H1-B program to companies.

Unfortunately, at the moment, Congress shows no apparent desire to make changes that could liberate workers like Pulido. Instead, Congress recently granted the Secretary of Homeland Security the discretion to expand the H-2B program, a temporary-work visa that effectively binds workers to their employers and is unsurprisingly prone to labor exploitation and human trafficking. – The Atlantic

Changing the H1-B Program

The truth is that employers love the control they have over H1-B employees. This is explained by The Atlantic in a separate article as follows.

The idea behind the visa program was to allow American companies to quickly hire foreign workers with needed skills, which would in turn boost the U.S. economy. And at the outset of the program, laws were put in place specifically to protect American workers from being replaced by companies that might try to hire H-1B visa workers, and pay them less.

In the wake of the firings at Disney and Southern California Edison, there was outrage. A handful of Democratic and Republican Senators urged the Department of Labor to investigate potential visa abuse. Employees filed lawsuits and complaints. Ultimately, nothing happened with these investigations because replacing American workers with H-1B workers is perfectly legal in many cases. That’s due to a loophole in the law that exempts certain companies from complying with the requirement not to displace an American worker when they petition for one of the 85,000 H-1B visas available each year.

To understand why this exemption was included in the H-1B program, I spoke to Bruce Morrison, a former Democratic Congressman from Connecticut who was the principal author of the Immigration Act of 1990 that created the original H-1B program. Morrison says that the now-controversial program was meant to be stricter than the original H1 visa, a broad program which allowed American companies to recruit foreign workers with specialized skills, often for jobs in the healthcare industry. He and his colleagues capped the number of H-1B visas at 65,000 and introduced the prevailing-wage requirement to protect U.S. workers. Since leaving office, the international outsourcing industry has exploded, and lawmakers expanded the program, while also adding the exemption for worker-displacement requirements. “It was a dastardly deed,” says Morrison, who blames tech industry lobbyists for urging lawmakers to add the caveat so they could keep profiting from comparatively cheap labor. (Morrison is now the chairman of the Morrison Public Affairs Group, which lobbies for a professional group of tech workers, the IEEE-USA.) “It licenses companies to displace American workers in a bill that purports to protect American workers.”

Many Silicon Valley companies argue that they rely on the program to recruit the best and brightest workers. And about 40 percent of the 85,000 H-1B visas available each year don’t go to those companies. Instead, they’re snapped up by outsourcing firms like the ones hired by Disney and California Edison. “This shows how powerful the tech lobby is,” says Ron Hira, who researches the impact of visa programs on the American workforce. “[The H-1B program] is very profitable for all these companies, so they will continue to fight for it.” – The Atlantic

How Industry Admits That it Controls H1-B Workers

It is nice when the industry comes right out and admits they love the control over workers that the H1-B system gives them. This is explained very clearly in the following quotation.

[T]here are two good things about H-1Bs. First, they allow you to travel the globe while you identify technical professionals who want to work in the United States. Second, the H-1B is valid only for the employer who arranges it. If you bring a technical professional into the country and he or she decides to jump ship, its likely that the ship he or she will have to jump on is the one thats going back to the home country. If the person wants to come back, he or she has to start the immigration process all over again. As a result, most H-1B visa holders demonstrate remarkable loyalty.212

As former Sun Microsystems manager Robert Smith put it: Sun used to cover costs, as well as the administration, of the conversion of H-1B visa holders to green card holders in exchange for an approximate 4–5 year commitment from the H-1B visa holder . . . For that period of time, Sun has an employee who will not, and in some cases cannot, jump to another company . . . This situation provides companies like Sun with a relatively stable workforce at a fairly consistent pay level that doesn’t need to keep pace with inflation, so to speak, as the local developers who had freedom of motion move on to their next job.213 – University of Michigan Journal of Law Reform 

Conclusion

The coercive nature of the H1-B program is hidden from view and would never be covered, for instance, in an IT media outlet, as they take advertizing from the same companies that want to exploit H1-B workers.

There are not enough new jobs each year to justify the number of H1-B visas that are issued. There has been a long term direct replacement program to remove more expensive and less controlled US employees from their jobs and to replace them with H1-B visas. There is no one currently who is focusing on stopping these abuses of the H1-B visa program, except for some in the Trump administration, which is rejecting more H1-B visas. However, as soon as an H1-B visa is rejected, both immigration attorneys, those who apply for H1-B visas, and companies hiring H1-B visa recipients begin complaining that this limits their ability to hire the workers they need. The fact that these companies are displacing large numbers of US workers is entirely left out of the conversation.

References

https://www.theatlantic.com/business/archive/2017/06/immigration-law-modern-slavery/529446/

http://heather.cs.ucdavis.edu/Mich.pdf

https://www.theatlantic.com/business/archive/2016/12/fixing-h-1b-visa-loophole/509639/

https://en.wikipedia.org/wiki/H-1B_visa