Don’t hire H-1B visa holders over qualified Americans: U.S. Justice Dept.

BE2C2 Report — The United States Justice Department has warned employers seeking H-1B visas to avoid discriminating against qualified American workers.

The message Monday came as the Department of Homeland Security announced new measures to “deter and detect” fraud and abuse in the foreign workers visa program at the start of the fiscal year and the beginning of government acceptance of petitions for 65,000 visas. An extra 20,000 visas are reserved for workers with advanced degrees.

The H1-B visas are typically used by IT firms to temporarily hire specialized workers from outside the United States. Employers violate the anti-discrimination provision of the Immigration and Nationality Act if they take citizenship or national origin into account in hiring, firing and recruiting practices, or otherwise discount U.S. workers with hiring practices favoring H-1B visa holders.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” acting Assistant Attorney General Tom Wheeler of the Civil Rights Division said in a statement. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

These warnings followed a United States Citizenship and Immigration Services memo Friday that it would no longer consider entry-level computer programming positions as specialty occupations that potentially automatically qualify for the visa.

The application pool typically is closed within a week because there are so many applicants. Those applications began flooding into U.S. Citizenship and Immigration Services on Monday, even as notices about the changes were posted.

In 2016, 236,000 foreigners applied for an H-1B visa, meaning only about one in every three applicants won one of the coveted spots. Between legal costs and government fees, each visa application costs between $7,000 and $10,000.

The tech world has made heavy use of the visa program, saying there are not enough American workers with the necessary skills to fill needed positions. According to a report, there are over 900,000 H-1B visa holders in the U.S.

“We hope it’s a targeted, surgical approach to attacking bad actors. We hope that this will make it easier to bring the best and the brightest here,” said Todd Schulte, president of, a technology non-profit that is working for immigration reform.

Monday’s new measures focus on agents making more site visits to employers to combat visa fraud.

Special scrutiny on H-1B dependent firms

The immigration agency will focus especially on companies considered “H-1B dependent,” meaning 15% or more of their workers are on H-1B visas.

In general, this is focused on Indian technology-outsourcing companies such as Infosys, Tata Consultancy Services, Wipro and Tech Mahindra Americas. These companies offer information technology outsourcing services and employ large numbers of Indian IT workers.

As long as they pay their workers at least $60,000 a year they do not have to prove they could not find an American worker for the job. However, because that figure was set in the 1990s, it is now a low salary for a technology worker.

“An American would charge $120,000 to do those jobs,” and major tech companies pay even more, said Kashif Sheikh, an investment analyst at Privco, a private company financial intelligence firm in New York.

The visa program has long been controversial, with some complaining that companies use them to hire cheaper tech labor, often from India, while qualified Americans are passed over.

President Trump has vowed to end the system, which he says doesn’t sufficiently protect American workers.

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