The director of the USCIS has come out and explicitly stated what has been put in practice the past year, to tighten further the H1B visa program and increase scrutiny of both sponsors and the submitted petitions. Speaking to an anti-immigration think tank (Center for Immigration Studies), Director Cissna said:
“I would really love it if Congress would pass a provision prohibiting American workers being replaced by H1B workers…”
He went on to say that he could draft it himself in a single sentence, if only it could be passed into law. “A simple fix, for example, just banning the ability of employers to fire American workers and replace them with H1Bs.”
Truth or Fiction?
These statements really do underscore the shift in attitude by immigration agencies toward foreign workers. While there have been no new laws passed by Congress, there are a multitude of new agency and administrative rule changes in the past two years. These have led to increases in Requests for Evidence (RFEs) and outright rejection of petitions simply for being incomplete.
It does beg the question however, if it is really true that American workers continue to be replaced by H1B visa skilled workers. It is well documented that this practice was fairly common a few years ago, with well-publicized cases involving Disney, Caterpillar and other major companies. In some cases, the American workers were even asked to train their H1B replacements or risk losing severance benefits.
However, in the past year with all the attention on H1B reform and petition review, there have not been any reports of widespread abuse or replacement of US workers. Most companies probably got the message when President Trump paraded out the dismissed Disney workers during his campaign, and pledged to end the practice of replacing US workers with H1B holders.
It would be a bold and foolish move at this point for a company to consider replacing entire departments of US citizens with foreign workers, since the dismissed employees could easily find a platform on media outlets to air their grievances (and would be certain to have Trump’s support on Twitter). Given this, it seems the USCIS director is fanning the flames of the H1B debate by insinuating that this practice is current and rampant.
The truth is that many companies are having a hard time filling highly skilled positions with engineers and IT professionals. So, it seems that there is a gap in what is being said and what is actually true when it comes the use of foreign workers in the US economy.
Is A Ban Even Legal?
His remarks do bring up an issue of whether it is legal to prevent a US employer from firing one employee and then hiring another, regardless of where they come from. The ‘at will’ employment policy of the US gives employers free reign when it comes to hiring and firing, so this would be a dramatic shift if there were some statutory protection of US workers over foreign candidates for the same position.
This could have a chilling effect on a technology driven economy that requires highly skilled workers, who often come from India and China. In short, it would mean that a company would be required to keep a US employee, even if there were a more qualified candidate available. Naturally, no one wants to see employees pushed out just because there are cheaper foreign replacements available, but as with much immigration policy today in the US any changes seem to be more reactive and polarized, than rational.
- September 19th, 2018