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12:07 PM Thu, Nov. 15th

Column | Opening Day for visa petitions

With April 3 the Opening Day, so to speak, for U.S. Citizenship and Immigration Services to accept fiscal year 2018 H-1B visa petitions, how this affects displaced and unemployed American tech workers is a timely subject.

Congress established a 65,000 H-1B visa cap per fiscal year; an advanced degree cap exemption will go to an additional 20,000 beneficiaries who have earned a U.S. master’s degree or higher. The harsh reality: 85,000 jobs, including tech positions, will go to foreign nationals while Americans will either lose the job they hold or will be denied an opportunity to be seriously considered for employment.

When it comes to reforming, i.e., restricting or eliminating the H-1B visa and its illegitimate cousin the H-4, the White House has, at various times, offered encouraging bluster. But from the big buildup, nothing positive for American tech and other skilled workers has evolved.

Here’s the sorry broken promise history. On the stump, candidate Trump promised to end “rampant, widespread H-1B abuse” that he said led to lost American jobs. Right out of the gate, the new administration suspended premium processing – no more pay to play to move an applicant’s paperwork to the head of the line – but then rescinded that order just a few months later.

In April 2017, U.S. Citizenship and Immigration Services issued updated guidelines that allegedly tightened the standards under which H-1B applications might be approved. The USCIS memo also suggested that employers evaluate the wage standards of its prospective overseas workers to ensure that they qualify, and the agency warned of targeted site visits to determine if fraud or other abuses were evident.

The USCIS advisory coincided with President Trump’s “Buy American, Hire American” executive order which led H-1B visa critics to anticipate that, at a minimum, extra scrutiny would be directed toward the lowest paid applicants, the so-called Level 1 category which is the Labor Department’s minimum permissible salary for foreign-born workers in certain professions. Pursuant to the more rigorous standards, immigration officials may send “requests for evidence,” meaning that they need confirmation of the information that the foreign national presented on his H-1B application. But as long as 85,000 visas are granted year after year, tougher standards don’t help Americans.

As for the H-4, the visa President Obama created through an executive order which allows H-1B holders’ spouses and children under age 21 to obtain employment authorization documents, President Trump initially talked tough on it, too. The fall 2017 edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions included an indication that the Department of Homeland Security was considering “stopping granting employment authorization to certain holders of H-4 visas, granted to spouses of H-1B recipients.”

But as with the hoped-for, pro-American changes to the H-1B visa, the smoke surrounding terminating the H-4 quickly vanished as federal courts intervened. On multiple occasions, DHS has been successful in convincing the U.S. Court of Appeals for the District of Columbia Circuit to delay the case originally brought by Save Jobs USA.

Since H-4 holders can work in any employment category and are not bound to their tech-visa sponsors, their presence in the labor market, while smaller in number than the aggregate H-1B total, adversely affects a broader swath of job-seeking Americans. A conservative estimate puts 100,000 H-4 visa holders in the workforce.

Readers don’t have to be immigration wonks to understand what’s going on: a purposeful, hurtful and sustained undercutting of American workers. Employment-based visas like the H-1B and H-4 mean that, no matter how Silicon Valley elites deviously portray it, Americans lose out on jobs.