Robert Santos – The H-1B Visa, for a great many foreign people around the world, is a manifestation of an invitation to find the American Dream—securing gainful employment, owning your own protected property, and pursuing your interests with little to no outside intervention—all the while practicing your own specialized skills mastered abroad. It is a highly-sought after invitation in which hundreds of thousands of applicants petition for one visa among an available 85,000. Although it appears on the surface that the primary parties are mutually benefiting, the H-1B Visa carries with it unspoken repercussions for others, particularly the employees being laid off to make room for newly-invited workers. One scandalous example of this displacement occurred when Walt Disney World terminated “more than 200 I.T. employees and hired an outsourcing firm to replace them with foreign employees with H-1B visas.”
The H-1B Visa Program carries with it amendments (as amended in 1998) to protect against company practices of replacing domestic workers with H-1B workers with essentially the same skills and lower salaries. Unfortunately, these laws only required that “all employers promise” to pay the H-1B visa-holders the area’s average wages for their positions and to show that these hires did not “adversely affect” the working conditions of current employees in similar jobs.
These requirements are further watered-down with a significant yet microscopic loophole which allows “H-1B reliant” companies to be exempt from its promises to shield jobs held by domestic workers when these companies prove that they are paying its H-1B employees at least $60,000 per year, or hire an H-1B visa-holder with a master’s degree. In the technology industry, amidst a national shortage of graduates qualified to keep pace with the industry’s demands, companies see a profitable opportunity to recruit H-1B’s and pay them less than their domestic counterparts. And yet, by doing so, they can make living in these tech hot-spots more challenging where the cost of the standard of living is already so much higher than the rest of the nation. The $60,000 threshold exemption now seems like a relic of the dotcom bubble era in which the significance of computer or software-related jobs were beginning to snowball.
So what would be the right move to limit or eliminate the unfairness inherent in the soft laws that bind “H-1B reliant” companies? Raising the salary threshold can prompt companies to reconsider laying off as many of its domestic workers but it will not protect them entirely from being replaced. However, eliminating the exemption altogether would not only kill a tangible and financial incentive for companies to hire foreign workers but also halt the progress of including much-needed talents, ideas and skills in an industry facing issues concerning a lack of diversity among employees.
