Congress could take one specific action to address complaints about the program.
The H-1B visa program has been controversial for some time, especially among American-born tech workers who see it as a source of competition. In theory, the H-1B visa exists for a sensible economic purpose: to ensure a relatively fast track for U.S. companies to import workers with needed, often highly specialized skills to fill jobs that can’t be filled by Americans.
In practice, it is often subjected to four lines of criticism, three general and one specific. The first general criticism is that the program brings in more workers than are strictly needed by companies that aren’t looking hard enough for American workers and prefer lower-cost foreigners. The second is that its structure (by which recipients are sponsored by particular employees) reeks of indentured servitude (which was banned in most American states by the end of the 1820s and outlawed by the 13th Amendment) in tying workers’ immigration status to a particular employer. This, it is argued, means that H-1B visa holders are apt to take lower pay and accept abusive working conditions. Workers can change jobs, but this entails getting a new visa. The third critique is that the program’s solely economic focus ignores whether workers are actually a good cultural fit for America. This degenerates at times into blunt complaints that the H-1B visa program imports too many Indians and Pakistanis, who in turn have birthright citizen children here or otherwise end up bringing in more relatives through other forms of chain migration.
The system has practical flaws as well that make it less effective and would be worthy of repairing if Congress was serious about reforming the system without abolishing it. It’s expensive and cumbersome to use, and visas are typically only available once a year, which limits the flow of visa holders but also defeats the economic purpose of ensuring that visas go quickly to fill actual business needs.
The general attacks on H-1B visas present broad questions of policy. The specific critique, however, is different: that companies bring in H-1B visa holders, direct their American workers to train them, and then lay off the American workers and replace them with H-1B visa holders. John Puri looked with skepticism at JD Vance’s latest complaint that Microsoft was doing this — a hard complaint to untangle because Vance conflates H-1B visa holders and green-card holders. If its commonality can be overstated, there is no question that this sort of thing has happened under the program. My question: If we think this is an abuse of H1-B visas, why shouldn’t Congress give legal powers to workers and/or federal immigration authorities to stop it? That ought to be a cause that unites critics of the H1-B visa program with those who support the program but don’t want it used for the purpose of displacing American workers. It’s the kind of thing that still should offer a workable space for bipartisan reform that doesn’t need to await a larger grand bargain.
The federal government does already have general weapons to deal with this situation, which is why Labor Secretary Keith Sonderling joined Vance to announce that “we’re cutting off the head of the snake” by suspending eight Washington-based companies (including Microsoft and Adobe) from his department’s permanent labor-certification program, which allows companies to hire foreign workers for permanent residence (i.e., they can apply for green cards). This is actually not the H1-B visa program, which is administered by the State Department, but the blunderbuss nature of federal agency authority in the immigration space offers a lot of ways for the executive branch to make life miserable for abusers of the immigration system if it chooses. That said, the trouble with very general authority is not only that an executive branch motivated in one direction can abuse it but that an executive branch motivated in the other direction can easily ignore it.
Private lawsuits are another matter. In general, we have too many ways for businesses to be sued in this country, and many of them create incentives for many more lawsuits to be filed than actually have merit. That said, creating a cause of action with clearly defined elements of proof and significant penalties is a fail-safe way to ensure that a particular fact pattern triggers litigation and thus causes companies to think twice before doing it — especially if the elements are defined in a way to make it easy to bring cases on a class action or collective action basis (the model for the latter being the Fair Labor Standards Act, which has its own collective-suit process). If Congress created a civil lawsuit for laid-off employees who were replaced by H-1B visa holders, and specified that being asked to train those visa holders is probative evidence and that fired employees could not be made to waive such claims as a condition for receiving severance, it could strike a very targeted blow at the single biggest complaint against the program.