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Albany Legal Blog

H-1B Visas for High-Tech Workers: Necessary to Industry or Cheap Labor?

On Behalf of | May 20, 2013 | Immigration

The other day I read an Associated Press piece in the Saratogian called Influence Game: Tech, Labor Spar On Immigration.  The article started out as follows:

“To the U.S. technology industry, there’s a dramatic shortfall in the number of Americans skilled in computer programming and engineering that is hampering business. To unions and some Democrats, it’s more sinister: The push by Facebook’s Mark Zuckerberg to expand the number of visas for high-tech foreign workers is an attempt to dilute a lucrative job market with cheap, indentured labor. ” 

The article went on to discuss the politics behind proposed changes to the H-1B nonimmigrant visa program in the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”).  What it did not explore, or explain very well, was the statement that somehow the H-1B program facilitates “cheap, indentured labor.” Please allow me to dispel this myth.

The H-1B nonimmigrant visa is granted to foreign national professionals who will perform services for a U.S. employer in a “specialty occupation.”  Examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Most employment-based nonimmigrant visas are tied to an employment relationship.  That is, a U.S. employer is required to sponsor the foreign national so that the foreign national can work for that sponsoring U.S. employer.  If the foreign national wishes to change jobs in the United States, a new employer must do the same thing. For individuals who are coming to the United States temporarily (which with few exceptions is what a nonimmigrant visa is supposed to be all about), I have no problem that the law requires the employers and employees to be tied at the proverbial hip (although I do agree that some not so nice employers probably do take advantage of this).  Nevertheless, years ago Congress made it much easier for H-1B professionals to move from one employer to another.  With a competitive labor market in the United States, H-1B professionals often do change employers in search of better opportunities (and I regularly work with both employers and employees where an H-1B professional is moving from one employer to another).  H-1B employees are hardly indentured workers.

I am also troubled, however, by this persistent myth that somehow this labor is “cheap.”  Nothing could be further from the truth. The law requires employers to pay foreign nationals on H-1B visas the higher of the prevailing wage for the occupational classification in the area of employment, or the actual wage (that is, the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question” ).  I regularly see in my practice where an employer wishes to hire an H-1B professional only to find out that the wage the employer must pay the foreign national is higher, sometimes substantially higher, than the wage the employer was going to offer (or the wage that the employer is currently paying other individuals at the employer’s business).

Another fact lost in the article is the hassle and expense for a U.S. employer to sponsor a foreign national for an H-1B. To hire a foreign national on an H-1B, a U.S. employer must incur legal fees, filing fees, training fees, fraud prevention and detection fees, and sometimes even “premium processing” fees (i.e., fees paid U.S. Citizenship and Immigration Services [“USCIS”] to expedite a petition).  There are potentially more fees too.  Filing fees alone to USCIS can be north of $5,000.00.   And this does not include the additional expenses to the company associated with the extra paperwork and ongoing compliance involved in the hiring and employing of an H-1B professional.

Trust me when I say H-1B professionals are not cheap labor, for the H-1B professional or the employer.