DHS Drops a Mix of Useful and Useless Changes to Guestworker Programs

By David North on October 24, 2023

For years, maybe decades, a self-employed nonimmigrant worker in the obscure L-1 (international corporation executives) program apparently could grant a him-or-herself a work visa that could lead later to a green card. I do not know how often this two-step maneuver happened, if it happened at all, but the Department of Homeland Security eliminated that possibility last week. That’s good.

Suddenly, late on a Friday afternoon, DHS announced the new L-1 regulations along with two other releases on revised policies in the much larger H-1B (tech) program and similarly-sized H-2B (non-farm worker) program; whether this was a conscious bundling of news on a late Friday, designed to minimize media and public attention, I do not know, but it looks suspicious.

The collection is a mixed bag of some useful changes and some useless ones. In general, it is a set of promises and often deals with minor hiccups in these programs. The reports never face the bleak and central reality that all of these programs are designed to cut costs for management and to allow for the replacement of American workers with alien ones. Further, one consistent characteristic of the reports is that there is no indication of how the layman can access the proposed new task forces. These bodies seemingly exist without postal addresses or telephones. Further, there are no statistics or wage level data to document the problems noted.

The central message is: “Trust us, we are seeking reform but will tell you as little as possible about it.”

The Statistical Background. The three programs deal with three quite different nonimmigrant work forces of differing sizes and differing degrees of controversy, all of which the documents ignore.

The H-1B program is for “specialty workers”, generally college grads, usually in tech jobs, often in the computer-related industries. It is the most controversial of the three, and the most reported-on, as it takes jobs from American college grads in large numbers. There is a partial annual ceiling of 85,000 new admissions each year, with non-profits and governments able to hire outside these caps. Since these are three-year visas, easily extended, the total population of H-1B workers is something like 800,000 at any one time. It is the largest of the three schemes. Not enough of the Americans who could take these jobs are apparently willing to join unions to fight the loss of jobs.

Next in size is the L-1 program for “intracompany transferees” and their spouses and children. These are supposed to be executives of international corporations, and thus hold jobs in the U.S. that would not seem to be open to U.S. citizens; it is thus less controversial than H-1B. One must have been employed for a year by an international firm abroad before coming to the U.S. as an L-1. There is no ceiling on the number of admissions. In a normal year, one not impacted by Covid-19, there are about 75,000 visas issued for L-1s, and an approximately equal number for L-2s, relatives of L-1s. Some 10,000 of these visas are converted to green cards annually.

The third program is for H-2B workers, who are non-skilled and not in agriculture. Typically, they work in landscaping and forestry work, or in restaurants or hotels. There is a 66,000 annual ceiling for new visas in this program. That ceiling is often compromised in one way or another by DHS. As we have noted, this is the only one of the three programs that has been diminished because of the surge at the southern border. Many U.S. employers have dropped out of it because they can hire the workers they need, legally, from among the new arrivals. The surge has not had a similar impact on the other two programs.

New H-1B Guidance. Instead of dealing with the extensive inequities of this program, which takes hundreds of thousands of jobs from Americans and lowers wages in industries where it is used widely, the new policy deals primarily with a minor inequity issue among alien applicants for the program.

Currently, an alien can cause different potential employers to file different and overlapping applications to hire that alien through the H-1B program. So some get two or more shots at selection while others get only one. The new policy is that no alien will be able to file more than one application.

While this change looks superficially fair, there will be an unintended effect of making a superior candidate for an H-1B job have the same chance of selection as a marginal candidate.

Let’s suppose there are two candidates for an H-1B slot, one is highly regarded and has a magna cum laude degree in the STEM fields (science, technology, engineering, and math); he can easily get half a dozen employers to file for him; the other candidate barely got his (or her) degree, and can secure only one bid from an employer. Under the previous system the better candidate would be six times more likely than the lesser candidate to get a job, but now they have equal chances.

The new system will also give employers all the rights that they now have to file an exaggerated number of applications so that they can out-maneuver the lottery system at little cost to themselves. Typically, an employer in the visa lottery gets about one approval out of three or four applications. Further, the new approach will ease the path for alien students to switch from the Optional Practical Training (OPT) program to H-1B, an extraneous touch.

What is needed is a simple auction. The slots in the lottery would be given to the 85,000 applicants who have secured the highest salary offers, 20,000 with advanced degrees and another 65,000 with either a bachelor’s degree or an advanced one. There would be two, sequential auctions, first for those with advanced degrees, and then one for those with or without advanced degrees, including those with advanced degrees who had lost in the prior round. This would tend to bring us the “best and brightest” as well as those most valued by employers.

This would also make it less likely that the new H-1Bs will lower wages and working conditions for citizens in the tech industries. It would make the program a bit more expensive, so the industry would try to kill it.

A straightforward, all-candidates auction would tend to further the chances of those in the tech fields over others; an alternative, one that I am not advocating, would be to run parallel auctions, one for people in the tech fields, and others for jobs in education and other public services; in each case the winning slots would go to the applicants with the highest salaries.

The government’s current proposal may sound useful and would be a gesture toward reform, but in the end it will be useless at best, or more likely, counter-productive.

The L-1 Policy Change. The clarification of L-1 policy is a totally good idea, though it raises questions as to how badly it is needed. The key verbiage follows:

U.S. Citizenship and Immigration Services has issued policy guidance in the USCIS Policy Manual clarifying that a sole proprietorship may not file a petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner.

This Policy Manual update affirms the existing guidance. The update distinguishes a sole proprietor from a self-incorporated petitioner (such as a corporation or a limited liability company with a single owner), where the corporation or the single member limited liability company is a separate and distinct legal entity from its owner, which may petition for that owner.

In other words, the sole proprietor needs to make some moves, like getting incorporated, before he or she files for the green card.

One might argue, though the government does not, that no one (except people with remarkable talents), should be allowed to get a working visa to the U.S. just on one’s own motion; no alien should be in the position of arguing, in effect, I am my own grandpa so the U.S. should grant me a visa.

In a somewhat similar situation, an alien spouse, who has had an unsuccessful marriage to a citizen, but who wants to become a U.S. resident, may “self-petition” to get the green card; this is noted in DHS statistics. Unfortunately, there is no comparable record for sole proprietors who self-petition from L-1 status, so we cannot tell how significant this reform is.

H-2B. The H-2B document begins inauspiciously with this title: “Biden-Harris Administration Releases Report of the H-2B Worker Protection Taskforce”, and generally runs downhill from there.

There are some new and potentially helpful changes in information availability in the program, and other promises of worker protections, but much of the emphasis is on a minor issue, a desire not to inconvenience an alien worker who gets caught up in a strike; that H-2B worker can extend his or her stay in the country if the delayed departure is caused by a strike.

I follow the H-2B program carefully and have for years; neither the alien workers nor the American ones with whom they compete are likely to strike; if they have grievances, and there are plenty of them, the workers go to pro bono or civil rights lawyers and a court case follows, sometimes won by the workers. The emphasis on strikes in this document suggests it was written by a litigious, foreign-born Rip Van Winkle, just awakening from a half-century nap.

Memories. Speaking of strikes in an unskilled worker program reminds me of my only contact with Cesar Chavez, the founder of the United Farm Workers (UFW).

I was then the assistant to the U.S. secretary of Labor for farm labor in the LBJ years. I had had an earlier conversation with the then number-two man in the old INS, the late Mario Notto, in which he told me, forcefully, that if nonimmigrant workers were used in an effort to break a strike, INS would remove them.

I happened to see Chavez in a hotel lobby in San Francisco; he had the day before been quoted in the newspapers, complaining about H-2s (as they were then known) being used to break a grape-pickers’ strike. I introduced myself and told him of the INS regulation; he accepted the information gracefully. I never saw him again, though I did work extensively with his deputy, Dolores Huerta, years later, on a Ford Foundation project.

Now the government is worrying about alien H-2B workers being inconvenienced by a labor dispute.