A First Small Step Toward Fixing H-1B

By David North on June 1, 2017

U.S. Citizenship and Immigration Services has done the right thing, substantively, regarding the dubious colleges that still haunt our immigration system, and it did so with what might be called bureaucratic elegance — and I mean that as a compliment.

As usual, in Washington, the move is complicated and the thrust of the decision may well get lost as it seems, at first glance, to be specialized, narrow, and lacking in drama. There is no wall, no billions of dollars, no mass deportations. All of that is true, but to a policy wonk like me, the USCIS decision is a thing of beauty.

It is also, unless I have missed something, the first really solid move by the Trump administration to change the H-1B system, even if only at the edges.

As background, there are three segments of the H-1B program for nonimmigrant workers. It provides 65,000 slots for those with bachelor's degrees, then there are 20,000 slots for aliens with an advanced degree earned in the United States, and finally there is an unlimited number of visas issued to people about to be hired by American universities and entities related to them. Today's subject is the group of 20,000 admissions, most of whom go to people with master's degrees, though a few have doctorates.

While most master's degrees in the nation are honorable indications of academic effort, a minority of them are different. Unfortunately, one of the things that the marginal colleges do with vigor is to turn out large numbers of master's degrees for aliens, virtually all in computer-related fields; many of these degrees do not reflect academic excellence.

The recent USCIS decision relates to the eligibility of a university to award the master's degrees that give aliens a shot at the 20,000 slots, a privileged position, if you will. Aliens who claim that they have master's degrees not only are permitted to join the lottery for the 20,000 slots (assuming an employer has filed for them) they may also, if they lose, go into the next lottery for the 65,000 slots. Thus, those with advanced degrees are doubly favored over other aliens seeking H-1B jobs.

But what kind of university is eligible to award a degree carrying these privileges?

The government's answer is that the university must be accredited by an organization recognized by the U.S. Department of Education at the time the degree is awarded. The alien in the case that resulted in this decision secured his degree from International Technological University, in San Jose, Calif., when ITU did not have this level of accreditation, though it has secured it since. So the government told the unnamed alien, and his partially named employer (A-T-Inc), no dice, you do not qualify for either the master's 20,000 lottery or for entry into the 65,000 lottery (the latter as a matter of timing in this particular case).

Finesse. What is important about this decision is not that one alien did not receive an H-1B visa; it is that the government will not, in the future, allow someone to obtain the master's exception in the H-1B program unless he or she has an advanced degree from an institution accredited by the right kind of review agency at the time that the degree was awarded.

And this is where the skillful managerial move enters the picture.

You see A-T-Inc. and its lawyer lost this by a decision of the USCIS appeals unit, the Office of Administrative Appeals, back on December 31, 2013. The verdict, like 99 percent-plus of AAO decisions, was a non-precedential one; it applied to A-T-Inc., but had no influence on other decisions made by USCIS or AAO.

What happened much more recently, and was announced on May 23, is that someone in USCIS dug this decision out of the files and decided that it should be a precedent for future decision-making. There was no need for a new law or new regulations, no need to ask Congress for money, just a simple, instantly applicable ruling that from now on the degree for one seeking the master's exception in the H-1B lottery has to be from an accredited institution. For the text of the policy memorandum, and the accompanying decision, see here.

The nation needs more of this kind of non-dramatic, detailed, and effective decision-making in the immigration field. A small step, to be sure, in a big arena, but one in the right direction.

The Results. The direct results of publishing this decision will be two-fold, one more immediate and significant than the other:

First, it will undermine the survivability of the least of our academic institutions, those without current accreditation from an entity recognized by U.S. Department of Education. There are scores of such institutions, providing work permits to tens of thousands of aliens. Securing a master's degree from one of these places from now on will not help one get an H-1B visa, so alien enrollments in these master's programs should shrink, particularly if this development is widely reported in the Indian press, which covers these matters much more thoroughly than the American media. (There are a lot of people from India attending these dubious colleges.)

Second, it will mean, starting next spring, that the quality of the population securing the master's degrees leading to the 20,000 H-1B jobs will improve somewhat by the forced absence of those with degrees from dubious institutions.

Perhaps it is also an indication, one hopes, that other, more sweeping changes are forthcoming regarding the H-1B program.

On a narrower note, the decision casts new light on ITU despite its recently secured accreditation. If one Googles ITU, one finds a helpful little note from Google saying "People also search for" and it shows as the first three icons those of Northwestern Polytechnic University, Silicon Valley University, and Herguan University, all located in the Bay Area.

Herguan University was closed by the Department of Homeland Security because it was a visa mill, and its former president (and owner) was sent to the federal penitentiary. The other two have drawn critical attention from both both the Indian press and the American press for their educational practices and the ease with which they dispense the Form I-20, the document leading to an F visa for foreign students.