...prospects for passage of any H-1B reform legislation remain low in this politically charged election year.

The H-1B visa program was the focus of critical examination during a recent hearing before the Senate Judiciary Subcommittee on Immigration and the National Interest. An H-1B is a temporary, non-immigrant visa that permits employers to employ foreign workers in “specialty occupations” deemed to require specialized knowledge in a field such as engineering, science, medicine, chemistry, or computer programming among others.

The hearing, titled, “The Impact of High-Skilled Immigration on U.S. Workers,” provided Subcommittee Chairman Jeff Sessions (R-AL) and fellow Subcommittee member Senator Dick Durbin (D-IL) an opportunity to examine how the temporary visa program is currently working and promote the consideration of possible reforms. Personal testimony provided by one of the witnesses, former Disney IT Engineer Leo Perrero, exemplified some of the main arguments against the program. Nevertheless, prospects for passage of any H-1B reform legislation remain low in this politically charged election year. The light attendance and varying views on the merits of the H-1B program expressed by Subcommittee members, very few of whom were present during the course of the hearing, also hints at the difficulty any reform measure may have gaining momentum.

If at First You Don’t Succeed…

The hearing covered essentially the same ground as a similar hearing held last year and several of the panel’s six witnesses, whose views were stacked 4 to 2 against the H-1B program, gave essentially a repeat performance of the points they had made on that previous occasion. Overall, the hearing and much of the questioning conveyed a determined tone as Chairman Sessions and Sen. Durbin stressed their desire to reform aspects of the current H-1B program in ways which they suggested would better protect American workers. Many of the specific arguments made against the H-1B program through testimony and questioning at the hearing are ones which the program’s critics have made in previous years. Nevertheless, the timing of the hearing, coming in the midst of a heated presidential campaign during which anti-immigration sentiment has figured at times, seems to signal that Chairman Sessions and his supporters may hope to find a more receptive national audience for their views.

Contours of the Debate

The core of the arguments put forward by critics of the H-1B program during the hearing is that some employers misuse the visas to replace American workers with lower cost foreign labor. This is a contention that was roundly denied by representatives from the business community. The program already requires that employers meet minimum wage requirements and that employment of H-1B visa holders will not adversely affect the working conditions of similarly employed American workers. As a result, H-1B visa holders tend to earn more than their American counterparts, as found in a 2013 report published by the Brookings Institution.

The core of the arguments put forward by critics of the H-1B program during the hearing is that some employers misuse the visas to replace American workers with lower cost foreign labor.

Two of the panel’s witnesses, a highly respected economics professor and a prominent technology corporate officer, used their testimony to stress the benefits of the H-1B program as a driver of innovation and collateral job creation, and impress upon Subcommittee members the technology sector’s difficulty in filling critical positions in the face of what they contend to be a continued shortage of available science, technology, engineering and math (STEM) workers.

Impact on Employers

Each year, beginning on April 1, U.S. Citizenship and Immigration Services (USCIS) accepts petitions from employers for up to 65,000 H-1B visas plus an additional 20,000 reserved for those who possess an “advanced degree”, interpreted as a Master’s degree or higher from a U.S. college or university. Friday, April 1, 2016 marks the opening of the filing period for new H-1B petitions to be counted against the annual H-1B quota or “H-1B Cap” for Fiscal Year (FY) 2017. In recent years, the demand for H-1B visas has far exceeded the supply. Those employers who have filed a petition on behalf of a foreign worker holding an advanced degree will have an opportunity for that individual to be selected at random by USCIS to receive one of the 20,000 H-1Bs issued under the advanced degree exemption.

Those individuals who are not selected under that exemption will then be eligible for the 65,000 visas available for individuals who hold at least a Bachelor’s degree (or its U.S. equivalent). Thus, individuals with advanced degrees receive “two bites at the apple”; in other words, they have two opportunities at securing an H-1B visa.  All individuals who filed as of the day USCIS officially announces that it has reached its annual H-1B cap will be automatically entered into the general H-1B lottery wherein USCIS uses a computer-generated process to randomly select the “winning” petitions.

The increased scrutiny over the program combined with the ongoing uncertainty of obtaining an approved H-1B petition under the annual quota continues to put pressure on employers. To protect their interests, companies who seek to employ foreign workers through the H-1B system should: 1) identify current and future employees who will need H-1B visa status to be legally employed in the United States, 2) be sure to prepare and submit their H-1B petitions by the April 1, 2016 filing deadline, and 3) think in advance of alternative pathways to obtain or retain the workers they need in the event that their H-1B petitions are not selected in the annual lottery.

...neither political party has been able to achieve a clear consensus on improvements for the H-1B program.

What Lies Ahead

At the moment, neither political party has been able to achieve a clear consensus on improvements for the H-1B program, notwithstanding several pieces of legislation introduced with the intent to strike a balance between protecting the American worker and the need for skilled foreign labor.

Pro-business members of Congress, particularly those supportive of the technology sector, have traditionally supported the H-1B program. Now, however, with immigration once again emerging as a “wedge issue” during the election year, the seeds for increased opposition to the H-1B program may have been planted. Regardless, bills to curtail the H-1B program, such as Sen. Chuck Grassley’s (R-IA) “H-1B and L-1 Visa Reform Act of 2015” (S. 2226), Sen. Ted Cruz’s (R-TX) “American Jobs First Act of 2015” (S. 2394), or Sen. Bill Nelson’s (D-FL) “Protecting American Jobs Act” (S.2365), would still face some very tough sledding. At the end of the day, it is not likely that the hard rhetoric against the H-1B program has yet reached a tipping point that would enable it to become concrete action.

A back-and-forth exchange during the hearing between the Subcommittee’s Ranking member, Senator Chuck Schumer (D-NY), and Chairman Sessions over the failure of Congress to pass a 2013 comprehensive immigration reform measure known colloquially as the “Gang of Eight” bill (S. 744), was reflective of the deep divides that still exist in the Congress over both legislative strategy and substance on the topic of immigration. These divides further underscore how difficult and unlikely it would be for any legislation intended to restrict the H-1B program to pass in this election year. Instead, these bills and the hearing are more likely simply to lay the groundwork for a continued push against the H-1B program in the coming year. Prospects for those future efforts will depend in large measure upon the outcome of the upcoming elections and the resulting composition of the new Congress.

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[Maria Fernanda Gandarez is a shareholder in Ogletree Deakins’ Immigration Practice Group and is based in the firm’s New York City office. Lowell Sachs is the Practice Group Manager for the Immigration Practice Group and is based in the firm’s Raleigh office.]