H1B Travesty and the much needed reforms

Background - Introduction

H1B is a temporary, non-immigrant, dual-intent visa that allows foreign workers to come to the US to work in a specialized occupation. Before we move forward, let's break down the classifiers as it will shed light on broader immigration topics. 

H1B is a temporary visa. In other words, it can't be for perpetuity. It can be renewed or extended but not for eternity. 

H1B is a non-immigrant visa. It does not give you the right to "immigrate" to the US. The word "immigrate", in immigration parlance, means to come to US to reside permanently. 

H1B, however, is a dual intent visa. Immigration department ("USCIS"), that is, understands and acknowledges that once you enter the US on this visa, you may have intentions to change your status to another non-immigrant visa like student visa (or vice versa, from student to H1B), or to actually change your mind and stay in the country permanently ("immigrate"). In contrast, a tourist visa is a single intent visa. You, on tour, are not expected to then change your mind when in the US! 

Another qualifier that is important to note and is usually not made apparent is that it's not a self-petitioning visa. You can't just apply for yourself! A US employer must do so for you, either while you are here (on another non-immigrant visa) or while you are in your home country. 

If granted, you can work in the US for three years! After three years, your employer can have your status renewed for up to three more years. Renewal may be given in 1, 2, or a single 3 year increments, depending on various factors. 

After 6 years, you may get your status renewed under certain exceptional cases. 

Background - Journey to Permanent Residency 

Whoever comes to the US, generally speaking and for good reasons, would love to stay here permanently and proudly become its citizen. As Ronald Reagan put it, US is "the shining city upon the hill." 

This is where dual-intent comes into picture. If H1B wasn't dual-intent, you would have to leave the US after a maximum of 6 years on H1B and then apply for an immigrant visa from your home country. But is is dual-intent, which means you can attain an immigrant visa without leaving the US (or adjustment of status). 

It's a simple process. 

Technically, you need to have your status adjusted from a non-immigrant visa (H1B) to that of an immigrant visa. 

1. Your employer must first apply and receive a labor certification from Department of Labor (called PERM).  Basically, a labor certification process includes "certifying" that there is no other US applicant for this job available to work for your employer. Therefore, you are needed! 
2. With PERM approved, your employer can then sponsor you for an immigrant visa. There are several types of immigrant visas - E2 and E3 being the most common for H1Bs. This sponsorship (or petitioning) is done by filing a form I-140, and therefore the process has come to be known as simply "I-140". 
3. After your I-140 is approved, your approved visa is run against a visa quota. If a visa is available as per the quota, you apply for an adjustment of status to receive an immigrant visa ("the green card").  If not, you wait for a visa to be available in time and as per quota, and when available, you apply for an adjustment of status! 

It's not that complicated of a process. 

Background - The process is simple. But the problems are anything but! 

Vivek Ramaswamy, the 2024 presidential hopeful, has said many things on the campaign trail but some hit home! 

• H1B is an arbitrary lottery system, and 
• H1B is indentured servitude. 

Let's break the two bombshells apart. 

One, H1B is, to your astonishment, granted through a lottery based draw! A fishbowl!  Well, not a fishbowl but an electronic lottery - not too far from a fishbowl in concept. 

Why such a childish act? Well, in law, lawmakers allowed 85,000 H1Bs a year. And they wrote that if number of H1B applications exceed that limit then the applicants should be picked from a lottery for adjudication. Else, regular order! 

Well, did they think that there will come a time when H1B applications will exceed 85,000? Not really, but they should have. Starting 2008, lotteries galore. 

Founding fathers of H1B should have expected glass ceiling of 85000 to have been shattered for two main reasons. 

1. This one you may guess. Specialized jobs explosion.
2. This one you may not guess. Any employer can file for an H1B application. Obviously, there are perfunctory requirements that you wouldn't expect a legit employer to violate like labor conditions / fair wages but nothing much more technical than that! 

And it's the second point that ran a shotgun shell through the 85,000 limit! Yes, we have loads of specialized jobs that US labor may not fulfill.  But if your uncle's best friend can open a consultancy firm and file for an H1B (just like a major research institute) for 10 employees, then you see how we can end up playing Russian roulette with people's lives! 

A great majority of employers who file for H1B applications are the so-called consultancies. They are not implementers like IBM or Accenture. They are not businesses with enterprise work. They are not even preferred vendors of contractors. They are local/baby/mom-&-pop consultancies. These consultancy firms have a simple business model. Get H1B foreign workers and brute force them into roles in US through layers of contracting firms.