Tech leaders found yet another reason to denounce President Trump today after federal immigration officials released seemingly stricter guidelines for the country’s high-skilled H-1B worker visa program. The backlash quickly built on social media as claims circulated that the Trump administration was preparing to limit the number of visas for computer programmers. But the threat doesn’t seem likely to live up to the hype.
Both critics and supporters of the H-1B program say these reports are overblown. In fact, they say, panicking about the putative changes plays right into the president’s hands. Trump has yet to fulfill his campaign season promise to change the way the H-1B visa program worksand now that the application process is open, he’s missed his chance for another year. Now it seems his administration is trying to appease his base by giving the impression he’s cracking down on visas. In reality, these guidelines probably won’t have much impact.
“People are creating news stories at this moment saying, ‘They’re toughening up H-1B.’ Malarkey!” says Bruce Morrison, a former Democratic member of Congress and now a vocal H-1B critic as a lobbyist for IT workers. “It just provides an opportunity to say they’re doing something when nothing is being done.”
Proponents of the H-1B visa agree. “I don’t think this suggests computer programmers are under attack,” says Manan Mehta, founding partner of Unshackled Ventures, which funds immigrant entrepreneurs, many of whom rely on H-1B visas when starting their businesses.
The confusion here stems from an obscure change to the H-1B vetting guidelines that United States Customs and Immigration Service issued over the weekend. It formally instructs the Nebraska Service Center, one of several centers in the US that vets H-1B applications, to adhere to a new handbook when considering computer programmer applications rather than an an older version drafted in 2000.
Those early guidelines classified all computer programmers as specialized workers whether or not they had a bachelor’s degree in the field. The new guidelines say that being a computer programmer alone isn’t sufficient and that applicants must “provide other evidence to establish that the particular position is one in a specialty occupation.” Some interpreted this memo as evidence the Trump administration is making it harder for computer programmers to get visas, but Mehta says these updated guidelines have, in fact, been in place for years.
A New Definition of High Tech
In a tech-driven economy, basic computer skills have become commoditized in some ways, Mehta says. “The H-1B is designed for the highest skilled worker,” Mehta says. “What used to be a high skilled job 20 years ago isn’t the same as it is today.” The updated guidelines, he says, merely ensure every service center is staying up-to-date.
Today Customs and Immigration also released new rules aimed at curbing fraud and abuse. Those rules target major technology outsourcing companies that flood the visa lottery with applications and end up winning the bulk of the 85,000 visas issued each year. Often, these companies use a loophole in the system to pay workers far less than the going rate for these jobs, which has created a damaging trend of American workers being undercut by foreign replacements.
Both H-1B critics and evangelists agree something needs to be done about that kind of abuse of the visa program. “If your business model is bringing in people and paying them less than what Americans are being paid, and 80 percent of your workforce is coming in on this visa, that shouldn’t be allowed anymore,” says Todd Schulte, president of FWD.us, the tech-backed pro-immigration lobbying firm co-founded by Mark Zuckerberg.
But H-1B detractors say the new rules do little to address those devious practices. Under the new guidelines, immigration officials will ramp up unannounced visits to firms that depend on H-1B visas for the majority of their workforce or that place workers in jobs at third party companies. The idea, the agency says, is to find employers that are “are evading their obligation to make a good faith effort to recruit US workers.” The agency has created an email address where concerned citizens can report suspected violations.
These efforts may superficially appear to target outsourcers. Yet Morrison argues that much of what these companies are doing is legal. “Catching fraud is a good thing, but the problem with outsourcing is not fraud,” he says. “The problem is in the law.”
Each side of the H-1B debate has a different suggestion for how to change the laws governing the program. Proponents like Schulte and Mehta support increasing the wage floor that companies need to pay H-1B visa holders. Critics like Morrison say that won’t stop outsourcers from abusing the system. “We don’t think you should be able to replace Americans with H-1B workers, period,” he says. “There shouldn’t be a set price for the bribe you pay.”
But both sides agree the new guidelines issued this week fall short of addressing the H-1B program’s deeper systemic issues. For now, Silicon Valley leaders fearful of Trump’s approach to tech can save their outrage for another day.