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The foundation of President Donald Trump’s America First primarily focuses on putting the American worker first. Both Elon Musk and Vivek Ramaswamy sparked a controversial debate regarding the H-1B program as the H-1B lottery draws closer this upcoming March.
Being on both the law firm and the U.S. sponsoring employer side as an immigration specialist for the last seven years, I fully understand both sides of the debate with my own family, who obtained their green cards under the employment-based EB-3 visa program, as nurses and doctors from the Philippines.
The H-1B program is a nonimmigrant visa for international students and foreign national workers. This visa program is specifically geared toward skilled foreign nationals from around the world, including India, China, Pakistan, and the Philippines, to fill the labor shortages in the U.S. tech and healthcare industry.
47 confirms he supports the H-1B program by stating, “We need a lot of people coming in.”
Unlike thousands of illegal migrants pouring into our wide-open borders in the last four years under the previous administration, there are strict requirements for all the employment-based visas that the foreign national must meet as highly educated and skilled foreign nation workers.
These strict immigration policy requirements are in place, in order for foreign nationals to obtain an approval from the government entity overseeing both immigrant and nonimmigrant visa programs, also known as USCIS (United States Citizenship and Immigration Services).
A brief explanation of the H-1B visa program
The American people need to have a better understanding of what exactly the H-1B program is a temporary nonimmigrant U.S. employer sponsored visa. Upon expiration of the H-1B visa, the foreign national has choice to either leave the U.S. or go through the legal pathways to U.S. permanent residency for foreign nationals to continue working and living in the U.S legally.
Here is a breakdown, as an example, of how the H-1B program works for international students, who are studying in a U.S. college. An international student attends a U.S. college, in order to obtain their masters or bachelors degree.
Once an international student finds temporary employment while enrolled in college or immediately after graduation, both small businesses and major corporations hire the international student. The international student under the OPT (Optional Practical Training) program have up to 12 months to find a U.S. employer, who is willing to sponsor their temporary H-1B visa.
International students under the OPT program are required to have employment within their major of studies, including the OPT STEM 24-month extension program. Under the OPT program, international students gain valuable on-the-job experience through a U.S. employer at entry-level positions or internship programs. After finding a U.S. employer, the international student needs to go through various pathways to obtain a temporary nonimmigrant visa, including H-1B visas.
The H-1B nonimmigrant visa program allows U.S. employers to sponsor foreign nationals to work in a specialty occupation on a dual-intent visa as a pathway to legal U.S. citizenship through the employment-based immigration program to obtain a permanent green card while working in the U.S.
USCIS specifically defines the H-1B specialty occupation visa as:
“The nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.”
Obtaining an H-1B visa is very competitive because thousands of foreign national workers apply for this visa each year on a lottery basis with a limited number of visas available. USCIS sets a cap of 65,000 visas for U.S. bachelor’s degree holders and 20,000 visas for U.S. master’s degree holders.
According to USCIS, the eligibility requirements for the H-1B visa include:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In the end, an H-1B sponsoring employer must be willing to file an adjustment of status for the international student to continue to work and reside legally in the U.S. after graduation.
The pathway to U.S. permanent residency from the H-1B temporary visa to a green card with the EB-2 and EB-3 employment based visas
Once a foreign national is selected under the H-1B program, the H-1B temporary visa is valid up to three years and eligible for extension for up to six years. With the H-1B visa being a dual intent visa, foreign nationals must go through the necessary steps through their U.S. sponsoring employer, in order to obtain permanent residency with a green card through the PERM process for EB-2 (advanced degreed workers) and EB-3 (professional and skilled workers).
Enacted by the Department of Labor (DOL), the PERM process is a labor certification process that U.S. employers must follow strict regulations to hire foreign workers by testing the U.S. labor market. For the U.S. employer to hire the foreign worker on a H-1B visa permanently, they must obtain a certified prevailing wage determination from the DOL to show that the prevailing wage rate is the average wage rate for the U.S. worker in a similar position. The U.S. sponsoring employer must pay the prevailing wage rate based on specific location and skillsets, determined by the DOL.
In my experience, highly skilled American workers need to be aware of the basis of the PERM foreign labor certification process for U.S. employers to keep foreign nationals employed full-time with the PERM position. Meanwhile, this process itself doesn’t sit well with me while U.S. workers are being laid off left and right.
The unfair practices of testing the U.S. labor market under the PERM recruitment process
In addition through the PERM process, U.S. employers need to show to DOL that there are “no willing and qualified U.S. workers who are willing to accept the foreign national, also known as the PERM position, that is being offered to the foreign national from the sponsoring U.S. employer.”
Employers need to test the U.S. labor market, which includes the mandatory requirements of posting the open position on the employer’s internal website to allow U.S. workers to apply for the PERM position, two consecutive Sunday newspaper ads, and placing a job order on the statewide agency’s website for 30 days. Next, HR Recruiters from both U.S. major corporations and small businesses have to prove on a legal basis by interviewing then denying prospective U.S. candidates for the foreign national’s job offer, also known as the PERM position. This process is meant to prove to the DOL that the U.S. employer cannot find the specific skillsets with the U.S. job applicants compared to the foreign national.
After the PERM process is completed then the foreign national applies for the I-140 application through UCSIS then adjustment of status to obtain lawful status as a green card holder. The H-1B to permanent residency green card visa process can be dragged for up to 10 years based on country of origin based on the foreign national’s priority date.
The time is now to overhaul the U.S. employment-based immigration process under Trump
The incoming Trump administration needs to overhaul the H-1B program and employment-based immigration process for a U.S. sponsoring employer to hire a foreign national worker on a temporary U.S. visa and then a permanent residency with a green card by enhancing stricter merit-based requirements for high-demand skilled STEM positions without displacing U.S. workers, especially U.S. college graduates competing with international students after graduation.
There is truth to the employment based immigration process that it is unfortunate to see U.S. workers being placed last at a disadvantage with prospective U.S. employers giving American citizen as applicants false hope through the recruitment process for the PERM labor certification with the intent of hiring the highly skilled foreign national to be permanently hired by tech companies.
U.S. employers need to prioritize highly skilled American workers by hiring Americans first again for high-paying positions in the tech and healthcare industries, who have been laid off these last four years under the previous administration.
Moreover, the legal employment based immigration system is becoming unfair being in the field of immigration law these last few years in my perspective for highly qualified STEM and extraordinary ability (EB-1 visa) foreign nationals in the arts, business, science, outstanding researchers, and multinational managers, who are willing to work and inject money into the U.S. economy legally. These highly qualified employment-based immigrants, who are eager to go through the long drawn out legal immigration process with hundreds sometimes thousands of pages of supporting documentation, have been under scrutiny with an increase in higher denial rates and Request for Evidence while paying thousands in legal and USCIS fees.
This is a disgrace to foreign nationals going through the immigration process at the same time, while our nation’s borders remain wide open with the unlawful presence of illegal and criminal migrants, which is a contradiction to our legal employment-based immigration system.
We need more conservative voices as immigration attorneys, policymakers, policy analysts, and advocates alike to take action by working together to completely overhaul the U.S. employment-based immigration completely by calling out the unfair practices of USCIS denying highly skilled foreign national applicants in the extraordinary ability visa category and tech companies hiring foreign nationals over U.S. workers.
Let’s go back to making Americans first in the U.S. labor force by hiring Americans first as a priority under the Trump administration. Then, in order to remain competitive with highly skilled talented foreign nationals to fulfill the labor shortages in tech and healthcare, we need to streamline the legal employment based immigration process with full transparency to hiring only highly qualified foreign nationals, who pledge their allegiance to fully to America by becoming U.S. citizens.
