America has an innovation problem. The H-1B visa backlog is making it worse.

“Since the early 20th century, the US has been a world leader in innovation and technical progress. In recent decades, however, some experts have worried that the country’s performance on these fronts has been slowing, even stalling.

There are many possible explanations for this phenomenon, but one has seemed especially salient in recent years: an immigration system that discourages, and often turns away, the most highly skilled and talented foreign workers.

Historically, immigrants have played a vital role in American innovation. As Jeremy Neufeld, an immigration policy fellow with the Institute for Progress, a new innovation-focused think tank, remarked to me, “It’s always been the case that immigrants have been a secret ingredient in US dynamism.” Robert Krol, a professor of economics with California State University Northridge, describes it this way: “The bottom line is that when you look at the impact of immigrants — whether you think about starting businesses or innovating patents — they have a large, significant impact.”

Multiple analyses of historical immigration patterns show that more migrants to a region correlates with a higher rate of innovation and related economic growth. By contrast, when immigration is more restricted, companies — especially tech companies and those that conduct innovative R&D work — are less successful, and growth in jobs and wages slows. Studies have also shown that immigrants tend to be entrepreneurial: Based on survey data between 2008 and 2012, 25 percent of companies across the US were founded by first-generation immigrants. Other research shows that immigrants are more likely than native-born US citizens to register patents.

As Neufeld points out, the Covid-19 pandemic might have gone much worse if immigration had always been as restrictive as it is now. A number of co-founders and critical researchers with Moderna are immigrants, as is Katalin Karikó, a pioneer of mRNA research — who, if she had tried to immigrate after the 1990 H-1B reforms to the skilled guest worker program, might not have been able to come to the US at all.

Those H-1B guest visas are at the center of the issue today, some experts say. Designed in 1990 to bring in skilled professionals to meet labor market shortages, visas through the H-1B guest workers program are sponsored by employers, who submit petitions to bring in particular foreign professionals appropriately qualified for specific, highly skilled roles. Guest workers generally need at least a bachelor’s degree in a relevant field.

According to the United States Citizenship and Immigration Services (USCIS), there are about 580,000 foreign workers currently on H-1B visas, a small percentage of the US workforce and immigrant population. But they are disproportionately concentrated in STEM, particularly computer-related occupations, often in fields where cutting-edge technologies are being developed.

Unfortunately, the H-1B process is falling increasingly out of date and badly failing to serve its original purpose of turning on the talent tap for top innovative companies. Congress sets an annual cap on how many H-1B visa holders can come in, and that cap is now far below what the labor market demands. The crush of applications once the window opens for a given year on March 1 is so intense that, in every year since 2014, USCIS has resorted to a lottery system instead of a first-come, first-serve process. That means that year in and year out, hundreds of thousands of high-skilled workers from abroad try to come to the US and ultimately fail, so that both the prospective employee and the company hoping to hire them end up losing out on their preferred option.”

Biden’s H-1B Conundrum

“I spoke with current and former H-1B holders, U.S. workers, union reps, academics, lobbyists, recruiters and immigration lawyers on both sides of the political spectrum. While they differed on the specifics, many said that the program is used not to fill labor shortages, as corporations insist, but to cut costs. Critics say that businesses regularly game the system to pay H-1B visa holders below market wages, both exploiting foreign workers and stacking the deck against American job seekers.

As a candidate, President Joe Biden promised reform, saying “high skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations.” Now in office, his administration is considering increasing the wages companies have to pay H-1B workers, which would reduce the incentive for companies to hire foreign workers. This summer, it quietly — and unsuccessfully — defended in court a Trump-era rule that would have replaced the lottery system currently used to allocate visas with one that prioritizes the highest-paying jobs. Both Democratic senator Dick Durbin of Illinois and Republican senator Chuck Grassley of Iowa had long been calling for the change, saying in a joint letter that the “H-1B visa program is greatly in need of reform.”

But full scale reform is going to prove tricky for a president who campaigned as a champion for both workers and immigrants. Because while many pro-labor groups say the program lines the pockets of the likes of Google and Facebook at the expense of American workers, immigration advocates, along with business interests, oppose measures to rein it in, saying that doing so will hurt American competitiveness by narrowing access to a badly needed pipeline of high-skilled talent. Politically, H-1B reform is pegging two powerful Democratic constituencies against each other. Meanwhile, getting anything through a sharply divided Congress won’t be easy.”

“H-1B reform could drastically change the landscape of business and immigration in the U.S. There are roughly 600,000 H-1B visa holders in the country, the vast majority from China and India. Most of these jobs are in tech, but companies can also use the program to hire, say, Spanish-language teachers or doctors with special skills.”

“Proponents of the H1-B program say that U.S. firms need access to foreign STEM talent in order to remain competitive, an argument that hinges on the existence of a domestic labor shortage in the tech world. Unemployment in the tech sector is significantly lower than it is for the economy overall, which business groups say is evidence that domestic tech workers are doing pretty well and foreign workers are mostly filling demand above and beyond what the domestic workforce can supply.

The problem is, historically it’s not clear that there has been a labor shortage in tech. Skeptics point to the fact that median wages in the sector haven’t increased everywhere in the country, or all that dramatically. “What happens when there’s something in short supply?” said Ron Hira, an associate professor of political science at Howard University and research associate with the pro-labor Economic Policy Institute (EPI). “You have a price mechanism. In this case, it would be wages. So, anything in shortage you’d see wages going through the roof.” The fact that there haven’t been dramatic wage spikes, he says, suggests that claims of labor shortages in the U.S. are overblown.

Instead, Hira and others believe that corporations have become accustomed to paying below market wages through use of the H1-B program. Employers are required to pay H-1B workers the higher of either the actual wage paid to a worker in a comparable role at their company, or the average wage for similar workers based on occupation, geography and experience. Employers select this “prevailing wage” from four levels set by the Department of Labor.

But an analysis by EPI found that, in 2019, employers certified 60 percent of all H-1B jobs at the two lowest levels — leading to questions about whether corporations were classifying these jobs at artificially low levels to avoid paying higher wages.”

“Wages can be pushed down by other factors, too. H-1B visas are held by employers, which means there are restrictions on the free movement of labor. Foreign workers can’t simply leave the company if their wages aren’t competitive. “I felt like I had no option to negotiate whatsoever,” said a Pleasanton, Calif.-based former H-1B worker and now-green card holder who didn’t want to be identified for fear of professional repercussions. He guesses he was paid 25 to 35 percent less than his domestic counterparts as an H-1B worker.

“People who have been here for 10 years, or even some people who were born and brought up here who’ve been in good jobs making six figures, suddenly they’re losing their jobs just because [their employers] found somebody from India who would do it for $50,000,” said Choudhary.”

“Some argue that the H1-B visa program lifts all boats: There is research showing that an increase in foreign STEM workers as a share of a city’s total employment increases wages for domestic workers more broadly. But for many workers, any aggregate benefits of the program are far outweighed by the costs. In 2015, Disney famously fired over 200 U.S. workers, some of whom said they were made to train their H1-B-holder replacements.”

“One of the biggest arguments made by tech and other companies against making it harder for foreigners to come in on an H-1B visa is that it would dissuade the “best and brightest” from coming to the U.S. But several of the people I spoke with said that’s not always the case. “It’s a mixed bag,” said the Pleasanton, Calif.-based former H-1B worker about the caliber of the H-1B visa holders he worked with.

In recent years, H-1Bs have been awarded by lottery because the number of visa applicants has far exceeded the annual cap. Immigration advocates say that this shows the scope of the need for high-skilled foreign workers. But critics say that has led to a proliferation of mediocre workers.

There’s also the problem of players who want to cheat the system.”

“H-1B visas are good for three years, after which workers may apply for an additional three year extension. After his six years were up, Vikram’s employer initiated the process of applying for a green card for him, but, because of an enormous backlog for people coming from India, the processing time was expected to last at least nine years.

Vikram decided it wasn’t worth it. He still works with his former employers — but now as part of his own business, which he runs from India, charging his American clients half the cost of a U.S. salary.”

““The focus on H-1B, as if it were the way that we get skilled workers into our economy — that’s an artifact of the misuse of the H-1B visa,” said Bruce Morrison, a former Democratic congressman who wrote the legislation that created the H1-B program. “The H-1B program is a non immigrant program. And non immigrant by definition is supposed to be temporary.”

His solution is to expand the current limit of 140,000 employment-based green cards per year. “We still have the same numerical limitations that we had in 1990,” said Morrison. Biden’s immigration bill includes a provision that would increase the number of employment-based green cards to 170,000.

“People who have green cards have a right to become citizens,” says Morrison. “They get to vote, they have the same rights as citizens, they can’t be exploited in a legal sense. These are real values.””