Refutes at least two points you made if not three..
It’s a perfectly logical (if not humane given current immigration law) position to hold that companies should be required to lay off visa holders first and for there to be a “cooling off” period between layoffs and hiring of visa holders.
My personal opinion is that liberalization of the visa process does more to protect local workers than our current system, but it’s perfectly reasonable to conclude big tech is currently using the visa system to blunt the tech labor market.
This is really suboptimal though, what if you have a H1B worker that's a high performer in a key position that would make your company collapse if they left but say, they were born in India, and you're laying off folks in projects that failed / folks that are low-performing.
It's pretty easy to fix the perverse incentives of H1B hiring: give folks a green card after being here for 3 years, that's basically how long it takes for ROW folks to get green-cards in good years.
Provide an option for a company to submit some paperwork and pay some non-trivial fee (to avoid gaming) that allows them to exempt such an employee from the visa-first layoff requirement. Additionally, fast track the green card process for whom said exemption is granted.
Yes, this. Or alternatively, in an economy where everyone is getting laid, the 60 day deadline should be extended indefinitely until the economy recovers and similar jobs start becoming available and plentiful, at which point they can consider reinstating the employment requirements.
This could easily be done by not having a per-country quota for green cards that seriously sanctions H1B holders from India and China. As in:
https://economictimes.indiatimes.com/nri/migrate/democrats-i...
Republicans probably won't let it happen, however.
The RINOs would love to do it unfortunately. They’d sell out the future of the country for a nickel.
"The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce"
OR
2 - the high performer is writing the best code that ever existed, which is why you can't replace them. However this is so rare. Most of those people have already migrated to FAANG where you better believe no one is that necessary.
You can offer them a different visa? H1B isn't the ONLY option. It's only being used because it's not a "key" position.
Maybe at the service/entry level but certainly not for tech jobs. Tech visas have nothing to do with filling the millions of service jobs; they're about filling the corporations' pockets with millions.
disclosure: have worked for large h1b heavy shops my entire career, and while there has been the very occasional exception, the bulk of the h1bs are hired entirely for cost reasons.
I don't think this is what OP meant. OP said "what if you have a H1B worker that's a high performer". This has nothing to do with the average performance of any group. The point is that a blanket mandate that a group should be fired over others first may hurt the livelihood of a company. Note whether this is right or wrong is definitely up to debate, and different countries implement different policies for either side. I'm just clarifying the underlying logic of the OP.
There should be consequences to violating these rules. Not being allowed to hire workers JUST because they're cheap (99% of H1B visa workers) is something that should always be enforced.
That is, hiring someone from outside the country SHOULD cost more so it isn't gamed.
Given these folks could be 10+ year long-term Indian residents of the US with approved I-140s waiting for their priority dates to come up, I'd say this would be incredibly inhumane. Generally sending people back where they came from because the company they work at made poor decisions feels like a bad idea, actually. Especially for a country as dependent on immigration as the US is to even come close to maintaining its population.
Uprooting people's lives, including that of US nationals (10 years is long enough to meet someone and have kids, even people that do not have a US citizenship or permanent residence either) is not humane. Visa holders have since 2017 a 60 days "grace period" in which H1B Visa holders have to find a new job, while L1 visa holders have that time to pack up and leave.
source: current resident alien
Edit: Quick googling to double check myself and it seems you're right in that USCIS indeed doesn't use that wording, which I must be getting confused with some other term they use in some form, or some other agency, or I'm just plain wrong and got the IRS wording internalized with something else.
Resident alien is synonymous with lawful permanent resident or green card holder, however nonresident alien is a tax term.
More seriously, while this particular discussion centers around US visas, obviously the analogous arguments apply to other countries as well.
Essentially you are stating everyone who loses a job in the U.S. should leave the US.
Or alternatively you want to draw a line when the good immigrants are allowed to enter after which are the bad immigrants. And I’m sure that conveniently that line will ensure your family becomes part of the good immigrants.
First-generation immigrants are folks who are born outside the US and naturalize. "In the United States, among demographers and other social scientists, 'second generation [immigrants]' refers to the U.S.-born children of foreign-born parents."
Not in the strictest sense, but it's not the bright line you're making it out to be either.
My mom was talking about how her siblings were selling their inherited property in Bangladesh (where land prices are skyrocketing) and buying property in the US, Canada, and Australia. And I’m like—you realize this is helping to keep Bangladesh is poor, right? All that capital flowing out to developed countries. (Not to mention the brain drain.) Meanwhile they’re voting to turn America into Bangladesh. -_-
"Just invest your talents in India" is asking him to leave his friends, his long term partner, his job, his home, and everything he has known for most of his adult life. It is also asking him to move to a place that is oppressive to his sexuality and denies him his deserved human rights. It is inhumane.
I also have no idea how H1Bs are voting to turn American into Bangladesh. They aren't allowed to vote.
India is his country. There’s nothing “inhumane” about ending a residency situation that is—according to the words on the paper, “temporary.”
I agree it’s enormously disruptive for Indians who think H1B is anything other than a temporary work visa. I agree it’s wrong that US employers and many politicians give people a false impression of the H1B program. That’s all the more reason for people to stay in India instead of dealing with this stupid system.
> I also have no idea how H1Bs are voting to turn American into Bangladesh. They aren't allowed to vote.
I’m talking about people who are naturalized citizens. There is a saying “I’d rather be governed by the first 100 people listed in the Boston food directory than the faculty of Harvard University.” This is a common sentiment among Americans. But it’s completely incomprehensible to people from the subcontinent. There is a deeply held belief in Credentialism and elite bureaucratic governance. When these people become citizens, they vote, according to these deeply, held cultural beliefs.
But I'll ask you: do you think that naturalized citizens of south asian descent should leave the country? You and I disagree politically, why can't I demand that you expatriate?
They are closely related. American law sees the H1B as a temporary worker visa, which in theory won’t lead to lots of new naturalized citizens changing the country and the workforce. Indians see the H1B as the first step to permanent immigration and naturalization. The ridiculousness of the H1B process arises from that fundamental conflict.
> But I'll ask you: do you think that naturalized citizens of south asian descent should leave the country?
No—citizenship is citizenship. But citizens get to decide immigration policy in their own self interest. That’s democracy. On a going forward basis, it’s entirely valid to ask how H1Bs are changing the country, and whether the American body politic believes those changes are good or bad. My family came to northern Virginia in an immigration wave that rendered the place unrecognizable. The place where I grew up doesn’t exist anymore. Had you polled Virginians back in 1989 and given them a glimpse of how importing a bunch of foreign elites would change their state, they quite reasonably could think those changes were for the worse.
By the way—this is not a Democrat versus Republican thing. Asians (who used to vote Republican until 2000) played a major role in reshaping the Democratic Party due to their concentrated populations in key states like Virginia. The immigrants who strive to send their kids to work on Wall Street and Silicon Valley are mostly not interested in solidarity with working class people.
Not exactly. It's considered a dual-intent visa by USCIS which means that the USCIS also sees it as the first step to permanent immigration and naturalization.
It is one of only two dual-intent visas: H-1 and L-1.
The alternative is a non-intent visa (O-1, B-1/B-2) which becomes invalid as soon as you demonstrate immigrant intent (filing an I-485).
> The ridiculousness of the H1B process arises from that fundamental conflict.
From a conflict, yes, but not from this conflict. The conflict is that neither US party is pro-immigration but USCIS is still mandated by law to offer immigrant visas. So they make it as difficult as humanly, legally possible.
The way the “dual intent” thing works is not by making it a non-temporary, or immigrant visa. It is still a temporary, non-immigrant visa, and the law still says that having immigration intent still is grounds for refusing entry. The only thing the “dual entry” legislation did was to create the legal fiction, where the USCIS/CBP are not allowed to use the application for a green card as evidence of immigration intent.
Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason.
Today, according to law, you are still not allowed to have immigration intent while on H1B, it’s just now applying for a green card does not constitute evidence of immigration intent (which is, of course, entirely a legal fiction).
The US immigration law and practice is completely insane. We have non-immigrant visas that, through legal fiction, are used to facilitate immigrations. At the same time, we have millions of people illegally crossing the border and making bogus asylum claims, which everyone understands to just be an immigration back door, created not through legislation, but rather discretion in enforcement. Instead of reforming the law to make it sane, and enforcing it (similar to eg. what Canada or Australia have), we have insane law, and strictly enforce it only against people who would be most valuable to have here.
An immigrant visa to the US is a green card.
Having immigrant intent is not a barrier to admission on a dual-intent visa. H-1s do not have to demonstrate that they have a "residence in a foreign country which he has no intention of abandoning" and "the H category is specifically excluded from the I.N.A. § 214(b)'s presumption of immigrant intent;" [1]
> Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason.
This is exactly what happens today if you file I-485 on a non-intent status like a TN. It doesn't happen on a dual-intent status.
> Today, according to law, you are still not allowed to have immigration intent while on H1B, it’s just now applying for a green card does not constitute evidence of immigration intent (which is, of course, entirely a legal fiction).
Regulation 8 C.F.R. § 214.2(h)(16)(i) states: "The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States." [1]
Applying for a green card through adjustment of status absolutely 100% counts as demonstration of immigrant intent. That is filing for I-485. Having your employer file I-140 doesn't because you didn't file it, your employer did.
This is basically all wrong.
Except for the part where you say that the US immigration system is silly - it is - and the part where you say that a system more like Canada and Australia would help - it would.
[1] https://isss.temple.edu/international/h-1b-temporary-employe...
The reason for all this is that the 1952 INA promised the American people that it would not change America’s demographic makeup. Nobody can get the votes to change that in Congress. But the executive branch can change the regulations unilaterally.
You are missing the point. Yes, H1Bs are excluded from presumption of immigrant intent. This doesn't mean that they can have immigrant intent. Instead, the law says (reiterating what I said in my previous comment) that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph". Of course, in practice, since the government has few other means of proving immigrant intent, and since they cannot presume immigrant intent, this means that the obvious immigrant intent exhibited by applying for permanent residence must be ignored. This is why the CFR says that, because this is true in practical application of the law. My point is that it is true thanks to legal fiction, where the government is obligated to ignore the obvious evidence of immigrant intent, notwithstanding legislation otherwise demanding lack of immigrant intent.
> Also you can possess immigrant intent and even petition from non-intent status like TN, so long as you developed said intent after arrival, and once you take steps (I-485 for instance) you can’t renew.
Yes, I talk about this in my comment, let me helpfully quote it, in case you missed it:
> Before 1990 or so, as soon as you applied for a green card while on H1B, your visa (though not status) became effectively invalid. You couldn’t leave the country, because you’d be denied entry, given your immigration intent. You couldn’t also apply for extension of H1B visa for the same reason.
Observe that I explicitly say that this doesn't invalidate your status, only (effectively) your visa.
> Having your employer file I-140 doesn't because you didn't file it, your employer did.
This is incorrect, otherwise the legislation wouldn't need to say that "the fact that an alien is the beneficiary of an application for a preference status filed under section 1154 (...) shall not constitute evidence of an intention to abandon a foreign residence".
> This is basically all wrong.
Nothing I said is wrong, and nothing what you said has contradicted what I said (except where you were wrong). You are just talking past me: I acknowledge the practical reality of the consequences of the legislation and the ensuing CFR regulations (indeed, I am myself a beneficiary of the process, starting from a dual-intent L-1 visa). Instead, my point is that the law, instead of saying that "yes, it's totally kosher for for H1B holders to come here with immigrant intent", it schizophrenically says something like "no, you cannot have immigration intent on H1B, but unlike on, say, B1, you don't have to prove that you don't, and we will just pretend that your immigrant petition does not in any way show that you have an immigration intent (which, to reiterate, you shall not have)".
This is just bigotry. Clear as day.
I was living in Virginia in 1989. You don’t get to tell me what I value.
It seems from your post that you weren’t even living in VA at the time. Are you somehow bigoted against both south asians and Virginians? You betting that a large portion of Virginians are just racists who don’t want brown people around (excuse me, “people who vote for elites”) is just fucking awful. I don’t even understand what you are trying to achieve.
It is always good to be labor in a labor constrained market, and the lower supply, the better.
I don't see how any liberalization could help local workers in the short term (I assume liberalization means expansion in this context).
Except that is obviously ridiculous, because people on visas induce their own demand in the local economy, growing the pie for everyone. They are also pre-trained, commit crime at a level vastly below the citizen population, don't get any sort of welfare, and pay enormous amounts of taxes.
As a minor note to babies comment, a baby isn't going to reduce the salary of the delivering nurse the day it comes out of the womb. If you let a million trained nurses enter the country, that would be a different story.
Look at what’s happening to the UK after Brexit. While in the EU, non UK EU citizens essentially had super visas that allowed them to work in the UK as long as they could get a job. This changed almost entirely after Brexit.
The result? Hundreds if not thousands of businesses such as farms, fisheries, bakeries, butchers, have shut down because they can’t find employees. This has resulted in a massive net loss of jobs among UK workers themselves (workers are not fungible…to switch to a new job they require training, skill, expertise, and desire). In addition, this is helping drive up inflation in the UK so that it’s higher than nearly every country in the EU even though the UK is more protected from Russian natural gas than say Germany.
Further, its national services, such as the NHS, which is unable to find doctors and nurses where it did so far more easily before Brexit, are consequently collapsing.
So it’s very disputable that visa holders almost certainly negatively impact the local working population.
I guess if all you have to go by is your own personal anecdote, one can understand why you might feel immigration is a net negative for the country you’ve immigrated to.
There was far lower supply of software engineers in the 1980s. But that market was much worse for software engineers in the US.
Only from a particular nationalist sentiment that isn't aligned with capitalism and free-markets.
It is fairly reasonable to believe that tech layoffs were used to blunt worker power. It's much harder to make that argument around h1bs, given the relatively small number of h1b employees, relative ease of employing foreign nationals, and (within the set of companies we're focused on) relative equality of visa holders (in terms of salary and growth opportunities).
Elon Musk didn't get laid off in the 2000-01 tech bubble presumably because he was good? But maybe it should be perfectly "logical" to send him home.
Incredibly short sighted take, the US have doubled the population in the past 60 years, are we running a 50% unemployment rate? The selective immigration have hugely benefited the US and its native population.
Depends what you mean by "logical". Blindly preferring citizens over visa holders is bad for the company, bad for the visa holders, and bad for the economy in the long term, but it's good for the citizen workers in the short term. I guess logic is defined by your priorities.
It is the perception that matters.
We filed, got the paperwork submitted, it got approved, they eventually came to work for me stateside. This took 14 months from filing to arrival. No one filing for a visa in February is having someone come over in March. No company is firing someone and filling that spot with an H1B the next day, unless that H1B is a contractor, and another company he already works for holds his visa.
So the major missing thing here is (unless the process radically changed), is the article is blatantly lying.
1. Layoffs happened regardless of visa status, so visa workers were part of the layoffs.
2. The visa applications for H1B could be for workers already working in the company under a different visa like TN or F1
3. The positions affected by layoffs and positions filing for H1B could be different. For example, a front end position may be affected by layoffs, but the visa application could be for an ML eng.
4. Visa could also be for more tenured staff. Plenty of companies are now only hiring staff+ roles after the layoffs
5. Because of the lottery system and how it works, you could have filed for a visa before a certain date but then before the visa was picked, the worker was laid off. i.e. you filed for a visa in Feb for the April lottery but laid off the person in March, giving the illusion that you filed for a visa after laying people off.