Sharp contrast between Trump, Biden approach to H-1B

Take Five With Grant Sovern On H1 B Panel

The H-1B program allows American companies to temporarily employ nonimmigrant foreign workers in occupations that require highly specialized knowledge. The program’s intent is to help employers who cannot otherwise obtain certain skills from the U.S. workforce, but despite its lofty intentions it’s not without critics.

One of those critics is the president of the United States. President Trump recently stopped the Tennessee Valley Authority from giving more than 200 information technology jobs to contractors, arguing that Americans who were being laid off were to be replaced by cheaper foreign workers. Since the TVA is a federally owned corporate entity, Trump had more leverage than he does in other cases and the TVA rescinded the layoffs. Perhaps mindful of the election calendar, Trump also signaled further restrictions as part of final H-1B regulations the administration is expected to announce soon.

Thus far, the Trump administration has focused its restrictions on IT outsourcing firms but other areas could be in the crosshairs. For example, the final rules could curtail the Optional Practical Training program, which allows science, technology, engineering, and math (STEM) students to work here on a student visa.

In this Take Five interview, we spoke to local immigration attorney Grant Sovern of the Quarles & Brady law firm to get his take on the H-1B differences between Trump and challenger Joe Biden.

Regarding the differences between Trump and Biden on H-1B visas, is it too simplistic to say that Trump is more restrictive while Biden, who has long supported comprehensive immigration reform, is more accommodating to foreign-born talent for this particular visa program?

Sovern G Hi

Grant Sovern

“I would say the Trump approach is more of a political approach and the Biden approach is more of a practical approach. The difference there is that in the political approach, you have an outcome in mind and with the practical approach, you get more feedback and buy-in and try to get to an answer that hopefully addresses more of the concerns, one that addresses costs and benefits. It’s always messier to take the practical approach because it takes longer and nobody is happy about it. So, you can look at it and ask whether it’s going to solve every problem? No, it’s not. Is it going to take a long time? Yes, it is, and that’s where we are with comprehensive immigration reform. It seems so painful that we can’t get into it and really make a difference.

“The current administration can point to their promises and say they have stuck to their promises. They are going into this and they are limiting H-1B visas and almost every other kind of immigration at the same time and say they’ve been successful. So, it’s generally true what you’re saying, but it’s two different approaches to solving a problem.” 

Biden seems to have the same kind of approach that was followed under President Obama, and he’s more supportive of comprehensive immigration reform. He may even support expanding the number of H-1B visas, so there is quite a difference between the two. [Note: The current annual statutory cap is 65,000 visas, but 20,000 additional visas are allowed for foreign professionals who graduate with a master’s degree or doctorate from an American institution of higher learning.]

“Yeah, you’re right about that, but I also think we need to look at the fact that no president gets to decide how many H-1Bs come in, and this is the frustration with both sides. Only Congress can decide that, so we get a lot of political commentary on what the president thinks should happen, but in the end the executive branch cannot make that change about the numbers or about the standards to get in. If you were just driving toward a political end, Obama gave up and said with the Dreamers that we’re going to have the DACA [Deferred Action for Childhood Arrivals] program. At the end of his administration, he said we’re going to make a status for entrepreneurs to be able to start businesses in the U.S.

“But then the next administration can just change it, which is exactly what they did. They terminated all of the work toward entrepreneurship visas and tried to stop DACA. The same is true of a lot of the things the Trump administration is doing now because they can’t make legal changes. They have to just change things around the edges, so the real issue is that Congress has abdicated its responsibility in the immigration area. There hasn’t been any meaningful reform to H-1B since 1990, when they first created it. They made some additional visas available and took them away, made some more visas available and took them away, but there hasn’t been any real look at it from Congress since 1990.” 

The Trump administration says the H-1B program benefits foreign-born talent at the expense of American workers, and Trump himself claims that it has been marked by fraud that also harms American workers. Does the administration have a point about that?

“Like any government program, there is definitely a concern about fraud. We should all be concerned because the bad actors are making the whole program look bad. So, there are clearly companies or organizations that are trying to game the system. There is no doubt about that, which is why we have to have robust enforcement of the rules that exist. The question is: Do we have to have different rules? Especially if you look at the employers in Madison, I haven’t seen any enforcement actions or cases where they have been fined for abusing the H-1B process. They would like to see the enforcement continue so that the program can continue. If what you say is that the whole program is terrible because of some of the people who abuse it, let’s do real enforcement to get rid of the abusers so that a good program that helps Madison employers can continue.” 

And it’s not just technology and biotech employers. It’s any employer that is using IT outsourcing, which as we noted has been a focus of the Trump administration.

“Yes, that’s true, because everybody gets caught up in it. There are health care workers who are having a harder time getting their visas now. If you look at the source of the issue, right now in the United States more than 50% of the people in graduate programs are in the STEM fields in U.S. universities. So, in a graduate program, a STEM field, at a U.S. university, more than 50% of those people were born outside the United States. If they’re here studying and learning, and we want the best and brightest to stay, we’re talking about hundreds of thousands of people who are studying in the U.S., and there are only 85,000 of these H-1B visas.

“Lots of employers are not out looking for foreign-born talent. I would say the vast majority of Madison employers are not looking to hire foreign-born people. It’s just that when they post a job, if it’s in anything related to the STEM field, especially if it’s an entry-level job, you have a better than 50% chance of the person you select being from outside of the U.S. and needing some sort of visa status to stay and work. So, it’s just a numbers game. It’s simple for politicians or Americans to say that the only reason for anybody to hire a foreign worker is because they will do it for less. That just seems like an easy answer that you can tell yourself.

“If you ask any of the employers in Madison who are doing this, they say that half of the people who apply for these jobs, because they work in IT or they’re in stem cell science or because they’re doing electrical engineering work, half of the people who apply for these jobs are from somewhere else. If I’m cutting off half of my job applicants, it really reduces either the quality or the quantity of people I can hire. I see in Madison that employers aren’t hiring loads of foreign-born people. I mean, Epic is, and they have a significant immigration program, but usually they are just trying to find one, or two, or three really highly qualified people to take jobs.

“If the most qualified person you see needs an H-1B visa — and you don’t even know if it’s going to work out because if they have to leave to go home and see a sick family member outside the country, you don’t know if they’re going to come back — you don’t know if the government will even approve the petition even though the person is qualified. It just makes their hiring process and finding the best person for the job so much more difficult.”

The Trump administration is reportedly in the process of finalizing its H-1B regulations so that, in its words, “no American worker is ever replaced again.” What kinds of restrictions do you anticipate and what are the chances of legal challenge to them? Is there any guidance that has been given or any hint about their direction?

“Yes, they have made some statements about what they would like to do over the past two or three years. I’m sure it will include a dramatic fee increase just to try to discourage people from doing it. We don’t know how much, and there is another likelihood. Currently, you have to prove that you are paying the prevailing wage, which is not the minimum wage. You have to pay what is the average wage for that job in that geographic area. So, that already exists, but a lot of people think, ‘Oh, you can just hire a foreigner who is willing to work for less,’ but I spend time telling employers why they have to pay the foreign worker more than the American workers because they have this requirement. The government will tell you how much you have to pay an H-1B worker, whereas with an American worker, you can pay whatever you want as long as it’s within the minimum wage.

“What the new regulations probably will say is that right now, there are four experience levels. There is entry level, and then one or two years of experience, three or four years of experience, and then five or more. They are probably going to say something like, ‘You can’t get an H-1B for somebody in an entry-level job anymore.’ So, that would just raise the prevailing wage requirement, and it sounds good to say we’re not going to give H-IB visas to anybody unless you pay a certain wage, but it will basically shut out the biggest group of people who are looking for those — which are the entry-level people in the STEM fields with graduate degrees from U.S. universities — from being able to stay here.”

If campaign contributions mean something, Silicon Valley tech firms appear to overwhelmingly favor the Biden approach. Based on what you’re hearing from local clients, what’s your sense of where Madison tech firms stand on their preferred approach?

“Madison firms just want some realistic regulations. The fact is — even for the CEO of a tech firm who gets locked out of the U.S. because there is a suspension on all H-1B visas being granted, or it’s taking seven months to approve an H-1B petition, not because there aren’t people to do it but because it’s a concentrated policy to make everything more difficult — they would prefer to have just a practical approach. They would prefer one that says, ‘OK, what are the standards? Who should get one? Who shouldn’t?’ And then apply those standards.

“The thing they are facing right now, and it’s not a policy difference so much as they are saying, ‘We just want to have an understanding of what the rules are, and we will fit within those rules.’ But right now, the administration is just trying to do everything it can around the edges to make getting an H-1B take longer, cost more, and not even let employers get it where there are qualified people. Honestly, I don’t think it’s so much a matter of the eventual policy, it’s will you describe the policy so that we know it and we can plan? They just want to know what the rules are. Right now, it’s very difficult to know that.” 

Some business groups are critical of the Trump administration on this issue, arguing that its restrictive approach harms U.S. competitiveness. The Wall Street Journal has made that point, as well, and that is not a liberal publication. Are they right about that?

“Well, what we’re seeing is at least two things. Number one, people who go to our U.S. universities and are learning at the highest level, a higher percentage of them are deciding not to stay in the U.S. To me, that seems like it’s hurting U.S. competitiveness because they are going somewhere else to start businesses or come up with new ideas.

“The second thing that’s happening is some employers are saying, ‘I can’t do business here as my main production or as my R&D facility.’ So, they are opening offices outside the U.S. It’s well known that Microsoft has done that right across the border in Canada, where the immigration rules are clearer and at least they can plan for it. They open an office and hire lots of people there to do the work they would have done in the U.S. To me, that seems like we’re missing out on opportunities on both sides.”

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