20 ms·

H-1B: Federal judge backs government’s narrower view of ‘specialty occupation’

105 points by protomyth 7y ago

duxup 7y ago
I'd really just like to see some sort of minimum pay that is relatively high so that is these are roles that are something the company feels strong enough to shell out the money. $120k? Something like that?
- paxys 7y ago
  $120k qualifies for low income benefits in San Francisco, so yeah that's not going to matter.
  - duxup 7y ago
    Maybe it should be a bidding process ;) Want the spot, spots are starting at 120k...
    - jmpman 7y ago
      The spots should be bid on, and the revenue should be used for STEM education scholarships of US citizens in the field the job was awarded in. The market is indicating that there’s a demand for the skill, so let’s increase supply with “cheaper” US citizens who aren’t going to be costing their employers for the spots.
      - duxup 7y ago
        Oh I like that.
        jmpman 7y ago
        I’d like to see a Presidential candidate run on that platform.
  - isbvhodnvemrwvn 7y ago
    Low income for a family of four IIRC, not for a single person.
    - opportune 7y ago
      Yeah, all you need to do is look up rent and taxes for that to be obvious. After taxes an online calculator is telling me you take home $82k. A single bedroom can be had for roughly $2k with roommates, $3k (comfortably) for a studio or one bed. Oh poor you with a disposable income of... over $40k/year
- whenanother 7y ago
  you have to be clear about whether this is the payment to a contracting firm or the payment to the contractor or if it is the “salary” that a typical employee from a company takes home. lots of numbers are thrown around without any clarifications for the intent of misleading people. also it must be emphasized that people outside the us typically rely on their home country’s universal healthcare so they will always will be able to undercut any us worker.
yazan94 7y ago
TL;DR: The student was denied an H1B for a QA Tester role, which requires a BS in a computer-related field. The argument was that this qualifies as a specialty occupation. The judge rightfully told her to pound sand. @privateSFacct has a good point - there are plenty of international students that get their masters degree here in America and they should definitely be getting better treatment. I really don't think that there are any actual jobs that require nothing more than a BS degree and can be honestly considered for an H1B unless we dilute the definition to mean anything that any occupation that requires a a 4 year degree (but at that rate, isn't everything a specialty occupation?). But there is probably a more systematic problem here - it doesn't seem that Americans want to get masters/phd degrees as much as international students do. In 2015: over half of the engineering masters degrees from US universities were earned by international students [1]. Same issue with PhD degrees [2]. Funny thing is, the average American student scores higher than students from other highly regarded countries, so it isn't some sort of skill gap[3]. Anecdotally, I know many people who refuse to get a MS because they feel that they will end up doing the same job for possibly slightly more pay. A lot of posts on programming subreddits also echo this sentiment (though there definitely isn't a consensus) - the opportunity cost for delaying your entry to the workforce by a couple years to get a masters often does not outweigh the salary and experience you would have otherwise earned in those 2 years [4][5][6]. I'm sure one can find posts where sentiment is generally one way or the other, I just liked the first 3 I found. [1] https://www.insidehighered.com/quicktakes/2017/10/11/foreign-students-and-graduate-stem-enrollment https://www.insidehighered.com/quicktakes/2017/10/11/foreign... [2] https://cacm.acm.org/magazines/2015/8/189841-understanding-the-u-s-domestic-computer-science-ph-d-pipeline/abstract https://cacm.acm.org/magazines/2015/8/189841-understanding-t... [3] https://www.pnas.org/content/116/14/6732 https://www.pnas.org/content/116/14/6732 [4] https://www.reddit.com/r/financialindependence/comments/8vsev3/did_your_masters_degree_do_you_any_good/ https://www.reddit.com/r/financialindependence/comments/8vse... [5] https://www.reddit.com/r/cscareerquestions/comments/7ade5r/how_has_getting_a_masters_helped_you_if_at_all/ https://www.reddit.com/r/cscareerquestions/comments/7ade5r/h... [6] https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/why_should_i_not_get_a_masters_in_cs/ https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/w...
- opportune 7y ago
oceliker 7y ago
This is one of the websites that think you're using a private browser if you use the iOS 13 beta. I wonder if it is because of new privacy features, or just because they don't recognize the user agent.
gnulinux 7y ago
As a current H-1B applicant who received RFE to prove 'specialty occupation', this is giving me anxiety. All my friends in the same company with exact same role, level and education got their H-1B visa last month or so and I'm still waiting for a response to my RFE. Eh, at least I still have my OPT STEM...
privateSFacct 7y ago
Ugh, these cases give H1B's a bad name. I do wish there was crackdown on crap like this. Where I work the H1B applicants (who don't get selected) have masters, from a US university, for a degree that applies specifically to their job. These folks should be on the red carpet to US citizenship. They have checked every box. Instead they get treated like crap. They should SHUT DOWN these other players who clog up the process. a) outsourcing firms that are just numbers game body shop mills. b) set a minimum comp for the jobs that is reasonable (but include retirement and other benefits in calc). c) allow all employers one applicant before awarding more slots, so the body shop mills have to compete with small business who have real jobs for real people and are not just playing percentage games (100K applications with 5k actual jobs available). I'm a HUGE fan of lots of immigration - but saying H1B is highly specialized for real jobs, then having the body shop mills apply for 100K slots (they don't have those jobs), so they can dominate the selections and then profit off the salary / visa arbitrage is disgusting for all involved. And yes, I sign real applications that never get selected (and am willing to pay well over Level 1 and Level 2 wages).
- Old_Thrashbarg 7y ago
  > They should SHUT DOWN these other players who clog up the process. Or we could focus on making the process uncloggable and work towards the free movement of labor which could add $78T to the global GDP. https://www.economist.com/the-world-if/2017/07/13/a-world-of-free-movement-would-be-78-trillion-richer https://www.economist.com/the-world-if/2017/07/13/a-world-of...
  - Mountain_Skies 7y ago
    How evenly would that $78 billion be distributed. Would some countries or groups end up as net losers?
    - conanbatt 7y ago
      Countries all around the world make policies to prevent their brighest and entrepreneurial minds from leaving to another countries. Immigration restriction is the process by the which you refuse the gift from another country. It is doing to yourself what your competitors are trying to inflict on you.
jimbob45 7y ago
It's tough to convince America that you need to import immigrants because there isn't a single American that can possibly fill the job. Some candidate (cough) is going to bring that up in the next election and I'm not sure I've seen a legitimate argument against it that isn't a generalization.
- throwaway082729 7y ago
  You mean single, unemployed, qualified American who really wants that job. There are probably thousands of Americans that can take up that job but don't want to because they don't want to move or like their current job or don't like that company, etc.
  - neetdeth 7y ago
    Or they can't take up that job because they don't have the credentials because they didn't pursue education in the field because education in America is expensive, and there is no market incentive to do so because everyone knows that the positions that do exist are quickly filled with low-to-median wage hires with overseas credentials, which is circularly justified by a perennial shortage of qualified American candidates, somehow, despite a population of 330M. Even in legitimate cases of difficult to find specialty labor, programs like H-1B should be sparingly applied because they jam the market signaling mechanisms that create qualified candidates in the first place.
- favorited 7y ago
  Big tech companies aren't going to replace H-1B consultants with Americans, they'll just fill those roles offshore.
wharnal 7y ago
> Sagarwala, according to the ruling in Washington, D.C. U.S. District Court, received an H-1B visa in 2012, but those visas are tied to specific employers. So when she sought to change jobs in August last year, the prospective new employer, outsourcing firm HSK Technologies, had to go through the visa application process again. So she had lived in the US for six years and still had to beg the government for permission to change jobs? I had no idea it was this bad.
- ergothus 7y ago
  This is definitely, painfully, normal. It also impacts where a worker will go - big companies have immigration lawyers on staff to help with this, while smaller companies have to leave the workers to largely fight the battle on their own. This means, regardless of wage(!), big companies have a bigger pool to hire from.
- throwaway082729 7y ago
  I've been here for 17+ years, earn $650k/yr and I'm still in the same boat. I'm at the mercy of the govt. if I want to change jobs. Moreover, I need to restart the labor certification process and reapply for my green card though I get to keep the same priority date. There's no end in sight i.e. I cannot predict when I'll get my green card due to the per-country cap and backlog. Worse, I cannot quit and take time off even for a day.
  - nullspace 7y ago
    Honestly, with that kind of salary - it feels like you could save up enough to get to an EB-5 investors category, which have far shorter waiting times, correct? Or am I mistaken?
    - product50 7y ago
      EB-5 for Indians has a 3+ yr timeline now and you have to shell out at least $500k. And there is no guarantee you will get approved.
    - 7y ago
techie128 7y ago
You'll notice that this person (Usha Sagarwala) doesn't show up on LinkedIn or has any online presence. That is because most consultancies have a playbook for these H1B employees which includes falsifying their resume and work experience in order to secure not only a visa but also a client. This is not anecdotal but a widespread problem specifically affecting consulting companies (a.k.a body shops). Here's an example where a student on an F-1 (Student) visa was denied entry when CBP determined he had lied: https://www.happyschools.com/h1b-visa-deported-port-entry/ https://www.happyschools.com/h1b-visa-deported-port-entry/ This is a well oiled racket that many people have been running for a while now. Here's an example where feds brought these people down: https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-ceo-in-u-s-may-have-brought-in-nearly-200-foreign-workers-feds/ https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-ceo... There is a lot of fraud in the H1B, EB5 and EB1C visa programs. The administration has tried to crack down on it consistently but the Trump administration has been the most vigorous in its enforcement so far. However, this fraud requires legislative fixes which haven't come in yet. Simple fixes like H1Bs can be used only for direct employees and not for consulting purposes would be a huge boon to American companies. Another fix would be to raise the minimum salary which after 30 years of running the program is still at 65K USD. It will have immediate, positive impact by closing the loopholes used for exploitation. This sort of fraud is also a big reason why people are stuck in years long backlogs for their employment based greencards.
CaliforniaKarl 7y ago
https://outline.com/nLeca8 https://outline.com/nLeca8
HBKXNCUO 7y ago
>There's absolutely no recourse. Why would a person expect to have recourse against a government which exists for the sole purpose of furthering the interests of a group of people to which that person does not belong?
- m0zg 7y ago
  I wasn't talking about recourse against the government. The government is within its rights to enforce the visa process to protect and regulate the local labor market. I was talking about recourse against the employer. Even if you're terminated wrongfully (i.e. in retaliation for reporting harassment or abuse, legally permitted whistleblowing, etc), it's unlikely that, as an H1-B, you will sue. That makes H1-Bs extra attractive to unscrupulous employers.
  - HBKXNCUO 7y ago
    You said there is no recourse after talking about a situation in which no one has recourse against the employer, i.e. if you get fired out of spite for looking for a new job. There is as you know recourse if you're fired illegally, as the American people have been so generous as to grant foreigners the right to sue Americans employers in such cases.
    - m0zg 7y ago
      Yes, but how do you sue if you have to leave the country on a short notice?
      - HBKXNCUO 7y ago
        By hiring a lawyer to represent you.
- conanbatt 7y ago
  It is the American employer that has no recourse to protest the government restriction on their business!
dangjc 7y ago
We need H1B's for the next generation of scientists, chip architects, and encryption researchers. We should be able to hire an American for a QA role.
tbyehl 7y ago
Why should anyone sympathize with someone who came here on what was supposed to be a non-immigrant visa tied to a particular job and then changes their mind about immigrating / the job? The whole immigration system sucks, and especially H1-B, but let's not pretend only some of the players are gaming it. Everyone is.
- abc_lisper 7y ago
  H-1B is dual-intent. https://en.wikipedia.org/wiki/Dual_intent https://en.wikipedia.org/wiki/Dual_intent
  - deleted 7y ago
    [deleted]
  - deleted 7y ago
    [deleted]
  - tbyehl 7y ago
    It became dual-intent, which lead to everyone's intent becoming to immigrate, which has lead to incredibly long processing times... https://en.wikipedia.org/wiki/Immigration_Act_of_1990 https://en.wikipedia.org/wiki/Immigration_Act_of_1990
    - stbernardlove 7y ago
      Can you explain how is anyone supposed to convince a US company to spend 2 years and tens of thousands of dollars to sponsor a candidate for an immigrant visa WHILE THEY ARE STILL IN THEIR HOME COUNTRY? For real though, name me a company that hired someone knowing they couldn't start for 2 years, while they get PERM, i-140 etc.
    - tbyehl 7y ago
      I'm taking downvotes here and up there... but people are missing the point. H1-B became a trap because of dual-intent. Someone who always intended to leave the US, as H1-B requires, shouldn't be too bothered that they can't (easily) switch jobs, that a job loss could send them home sooner than anticipated, and they shouldn't have to accept substandard wages or housing or any other body shop abuses we hear about... because they can always just go home, like they'd always intended and should have planned for. Dual-intent baited people to come here on H1-Bs on the assumption that they'll eventually get permanent residency, bring their family over, attain citizenship. Plenty of people risk their lives to get here with no hope of citizenship; putting up with body shop abuses on a path to citizenship is minor in comparison, a lot like staying at a job you've come to dislike to run out the vesting clock. And H1-B is such effective bait because the rest of our immigration policy is screwed up and discriminatory.
conanbatt 7y ago
Im amazed at the level of protectionism expressed in this thread, in this community. I will make an argument for the cynics that believe they should be protected from competition: that immigration restrictions and caps like the H1B curtail the freedom of Americans to buy services from who they want to. American people that run American businesses are prohibited from hiring people they believe to be best suited for the job. There is not "gaming" the visa or "outsourcing companies". US consumes software engineers from abroad at 100x its software engineer immigration, only that they don't pay taxes to the US and export close to 100% of the their trade. It would be much better for the us to bring the people inside America to pay taxes and provide more value for Americans. Incredible to see software engineers buying an apple phone made in china and argue that Americans should not be able to employe chinese software engineers.
- pnw_hazor 7y ago
  Trump has proposed merit based immigration which would reduce the need for H1B non-immigrant visas.
- fred_is_fred 7y ago
  Until other countries also decide to drop all their protections we'd be suckers to do it first.
- president 7y ago
  > I will make an argument for the cynics that believe they should be protected from competition: that immigration restrictions and caps like the H1B curtail the freedom of Americans to buy services from who they want to. American people that run American businesses are prohibited from hiring people they believe to be best suited for the job. This argument makes sense from the point of a business owner but not necessarily for the average American who will lose his job to a foreign worker that will work ungodly hours for considerably less pay. And over time, working ungodly hours will then become the norm and get worse and worse over time as the cycle continues. But yes, there is plenty of money to made if you're a business owner who can hire plenty of cheap and willing workers.
  - 7y ago
Rch_East 7y ago
The H-1B program is so flawed I wonder if it would be better to just cancel it. Replace it with a program which prioritises America's military and cultural allies: UK, Canada, Australia, New Zealand, South Korea, Japan. Set a minimum salary of $100,000 and let anyone born in (and a citizen of) those countries in.
stbernardlove 7y ago
Signed up just to say this. I don't see the controversy in not counting QA analyst as a specialty position. Just look up what countries like Canada, UK, France consider specialty positions and understand that this isn't a controversy. In fact, I was shocked that QA has been an H1B position in the United States. This is also why there are such massive backlogs for EB-3 for India, despite them getting circa 18% of the cap (7% + unused quota from ROW).
- unimployed 7y ago
  The truth might be worse than you think. Not only has QA been a popular H1B approved requisition, but so are positions that are simply listed as “Analyst” and “Business Analyst” and so on, as well as the many many variations on “Analyst” (QA or other). It might compete with “Developer” as the most common H1B position.
tracker1 7y ago
How about defining specialty job as paying at least 8x minimum wage, or in the top 25% of paid employees of a company whichever is higher?
- whenanother 7y ago
  all pay discussions must be qualified with details to whether it is a payment to a contracting company or the contractor or an actual salary with benefits. most foreigners will read your comment and think you are talking about contract payments while us citizens think you are talking about a salary with health and other benefits.
  - tracker1 7y ago
    I'm not sure that it entirely matters. 8x minimum wage is already higher than most h1b make. It's about establishing a floor for not abusing the class for cheaper labor. Some companies will still be organised and pay less than others. Nothing would change that without a huge bureaucracy.
tsjq 7y ago
perhaps she filed the case because she knows the amount of super fraud that goes on in H1B visa applications.
WomanCanCode 7y ago
QA doesn't seem like a specialty occupation. We had over 100 QAs in our department with a degree from community college and others for-profit. Some with work experience and no degree.
booblik 7y ago
As someone on work visa myself it is very clear to me that I have the visa to do a specific job at a specific company. I know I may have to leave at anytime. I also know that there is a path to GC, but it is a bonus and not a certainty. Any intelligent person should understand that. Now I am not from India or China, but it still takes years to get a GC. And yes in those years I may like it here very much and start building a life. But if I do, I accept the responsibility that one day it may all be taken away from me, and I will not be pretending to be a victim. So if you started your life here 5, 10, 15 years ago, you knew full well what you were doing, you were a grown adult with at least a bachelors degree. So just stop being a victim. Is the system broken? Yes. Do we as immigrants understand that? Yes. Can we do anything about it? No, this is America, and Americans will or will not fix it.
- noworld 7y ago
  How is it broken? EDIT: Just wanted to add that I am an American and I would prefer that employers had to raise wages and offer increased benefits to attract domestic workers rather than have the option to import low-wage workers from other countries.
  - booblik 7y ago
    I came to this country in part because I was offered a very good salary by my employer, that allows me a very comfy life in San Francisco. They would be cheaper off with a local worker, that would be available for immediate hire, and wouldn’t need an expensive and quite long visa processing. Alas they found none, and not for lack of trying.
  - booblik 7y ago
    BTW I think that QA has zero justifications for an H1B visa.
stbernardlove 7y ago
I'm sorry, but if you were forced to accept your initial H1B offer to immigrate to this country, then I believe there are authorities you can report this to. However, it sounds like you came here voluntarily on an H1B and are now disappointed that you still don't have a green card, even though H1B and GC are separate things and no one ever promised you one. Nor does the US govt owes you one.
Winner1234578 7y ago
Good decision!

105 points by protomyth 7y ago

I'd really just like to see some sort of minimum pay that is relatively high so that is these are roles that are something the company feels strong enough to shell out the money. $120k? Something like that?

paxys 7y ago
$120k qualifies for low income benefits in San Francisco, so yeah that's not going to matter.
- duxup 7y ago
  Maybe it should be a bidding process ;) Want the spot, spots are starting at 120k...
  - jmpman 7y ago
    The spots should be bid on, and the revenue should be used for STEM education scholarships of US citizens in the field the job was awarded in. The market is indicating that there’s a demand for the skill, so let’s increase supply with “cheaper” US citizens who aren’t going to be costing their employers for the spots.
    - duxup 7y ago
      Oh I like that.
      - jmpman 7y ago
        I’d like to see a Presidential candidate run on that platform.
- isbvhodnvemrwvn 7y ago
  Low income for a family of four IIRC, not for a single person.
  - opportune 7y ago
    Yeah, all you need to do is look up rent and taxes for that to be obvious. After taxes an online calculator is telling me you take home $82k. A single bedroom can be had for roughly $2k with roommates, $3k (comfortably) for a studio or one bed. Oh poor you with a disposable income of... over $40k/year
whenanother 7y ago
you have to be clear about whether this is the payment to a contracting firm or the payment to the contractor or if it is the “salary” that a typical employee from a company takes home. lots of numbers are thrown around without any clarifications for the intent of misleading people. also it must be emphasized that people outside the us typically rely on their home country’s universal healthcare so they will always will be able to undercut any us worker.

yazan94 7y ago

TL;DR: The student was denied an H1B for a QA Tester role, which requires a BS in a computer-related field. The argument was that this qualifies as a specialty occupation. The judge rightfully told her to pound sand. @privateSFacct has a good point - there are plenty of international students that get their masters degree here in America and they should definitely be getting better treatment. I really don't think that there are any actual jobs that require nothing more than a BS degree and can be honestly considered for an H1B unless we dilute the definition to mean anything that any occupation that requires a a 4 year degree (but at that rate, isn't everything a specialty occupation?). But there is probably a more systematic problem here - it doesn't seem that Americans want to get masters/phd degrees as much as international students do. In 2015: over half of the engineering masters degrees from US universities were earned by international students [1]. Same issue with PhD degrees [2]. Funny thing is, the average American student scores higher than students from other highly regarded countries, so it isn't some sort of skill gap[3]. Anecdotally, I know many people who refuse to get a MS because they feel that they will end up doing the same job for possibly slightly more pay. A lot of posts on programming subreddits also echo this sentiment (though there definitely isn't a consensus) - the opportunity cost for delaying your entry to the workforce by a couple years to get a masters often does not outweigh the salary and experience you would have otherwise earned in those 2 years [4][5][6]. I'm sure one can find posts where sentiment is generally one way or the other, I just liked the first 3 I found. [1] https://www.insidehighered.com/quicktakes/2017/10/11/foreign-students-and-graduate-stem-enrollment https://www.insidehighered.com/quicktakes/2017/10/11/foreign... [2] https://cacm.acm.org/magazines/2015/8/189841-understanding-the-u-s-domestic-computer-science-ph-d-pipeline/abstract https://cacm.acm.org/magazines/2015/8/189841-understanding-t... [3] https://www.pnas.org/content/116/14/6732 https://www.pnas.org/content/116/14/6732 [4] https://www.reddit.com/r/financialindependence/comments/8vsev3/did_your_masters_degree_do_you_any_good/ https://www.reddit.com/r/financialindependence/comments/8vse... [5] https://www.reddit.com/r/cscareerquestions/comments/7ade5r/how_has_getting_a_masters_helped_you_if_at_all/ https://www.reddit.com/r/cscareerquestions/comments/7ade5r/h... [6] https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/why_should_i_not_get_a_masters_in_cs/ https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/w...

opportune 7y ago

oceliker 7y ago

This is one of the websites that think you're using a private browser if you use the iOS 13 beta. I wonder if it is because of new privacy features, or just because they don't recognize the user agent.

gnulinux 7y ago

As a current H-1B applicant who received RFE to prove 'specialty occupation', this is giving me anxiety. All my friends in the same company with exact same role, level and education got their H-1B visa last month or so and I'm still waiting for a response to my RFE. Eh, at least I still have my OPT STEM...

privateSFacct 7y ago

Ugh, these cases give H1B's a bad name. I do wish there was crackdown on crap like this. Where I work the H1B applicants (who don't get selected) have masters, from a US university, for a degree that applies specifically to their job. These folks should be on the red carpet to US citizenship. They have checked every box. Instead they get treated like crap. They should SHUT DOWN these other players who clog up the process. a) outsourcing firms that are just numbers game body shop mills. b) set a minimum comp for the jobs that is reasonable (but include retirement and other benefits in calc). c) allow all employers one applicant before awarding more slots, so the body shop mills have to compete with small business who have real jobs for real people and are not just playing percentage games (100K applications with 5k actual jobs available). I'm a HUGE fan of lots of immigration - but saying H1B is highly specialized for real jobs, then having the body shop mills apply for 100K slots (they don't have those jobs), so they can dominate the selections and then profit off the salary / visa arbitrage is disgusting for all involved. And yes, I sign real applications that never get selected (and am willing to pay well over Level 1 and Level 2 wages).

Old_Thrashbarg 7y ago
> They should SHUT DOWN these other players who clog up the process. Or we could focus on making the process uncloggable and work towards the free movement of labor which could add $78T to the global GDP. https://www.economist.com/the-world-if/2017/07/13/a-world-of-free-movement-would-be-78-trillion-richer https://www.economist.com/the-world-if/2017/07/13/a-world-of...
- Mountain_Skies 7y ago
  How evenly would that $78 billion be distributed. Would some countries or groups end up as net losers?
  - conanbatt 7y ago
    Countries all around the world make policies to prevent their brighest and entrepreneurial minds from leaving to another countries. Immigration restriction is the process by the which you refuse the gift from another country. It is doing to yourself what your competitors are trying to inflict on you.

jimbob45 7y ago

It's tough to convince America that you need to import immigrants because there isn't a single American that can possibly fill the job. Some candidate (cough) is going to bring that up in the next election and I'm not sure I've seen a legitimate argument against it that isn't a generalization.

throwaway082729 7y ago
You mean single, unemployed, qualified American who really wants that job. There are probably thousands of Americans that can take up that job but don't want to because they don't want to move or like their current job or don't like that company, etc.
- neetdeth 7y ago
  Or they can't take up that job because they don't have the credentials because they didn't pursue education in the field because education in America is expensive, and there is no market incentive to do so because everyone knows that the positions that do exist are quickly filled with low-to-median wage hires with overseas credentials, which is circularly justified by a perennial shortage of qualified American candidates, somehow, despite a population of 330M. Even in legitimate cases of difficult to find specialty labor, programs like H-1B should be sparingly applied because they jam the market signaling mechanisms that create qualified candidates in the first place.
favorited 7y ago
Big tech companies aren't going to replace H-1B consultants with Americans, they'll just fill those roles offshore.

wharnal 7y ago

> Sagarwala, according to the ruling in Washington, D.C. U.S. District Court, received an H-1B visa in 2012, but those visas are tied to specific employers. So when she sought to change jobs in August last year, the prospective new employer, outsourcing firm HSK Technologies, had to go through the visa application process again. So she had lived in the US for six years and still had to beg the government for permission to change jobs? I had no idea it was this bad.

ergothus 7y ago
This is definitely, painfully, normal. It also impacts where a worker will go - big companies have immigration lawyers on staff to help with this, while smaller companies have to leave the workers to largely fight the battle on their own. This means, regardless of wage(!), big companies have a bigger pool to hire from.
throwaway082729 7y ago
I've been here for 17+ years, earn $650k/yr and I'm still in the same boat. I'm at the mercy of the govt. if I want to change jobs. Moreover, I need to restart the labor certification process and reapply for my green card though I get to keep the same priority date. There's no end in sight i.e. I cannot predict when I'll get my green card due to the per-country cap and backlog. Worse, I cannot quit and take time off even for a day.
- nullspace 7y ago
  Honestly, with that kind of salary - it feels like you could save up enough to get to an EB-5 investors category, which have far shorter waiting times, correct? Or am I mistaken?
  - product50 7y ago
    EB-5 for Indians has a 3+ yr timeline now and you have to shell out at least $500k. And there is no guarantee you will get approved.
  - 7y ago

techie128 7y ago

You'll notice that this person (Usha Sagarwala) doesn't show up on LinkedIn or has any online presence. That is because most consultancies have a playbook for these H1B employees which includes falsifying their resume and work experience in order to secure not only a visa but also a client. This is not anecdotal but a widespread problem specifically affecting consulting companies (a.k.a body shops). Here's an example where a student on an F-1 (Student) visa was denied entry when CBP determined he had lied: https://www.happyschools.com/h1b-visa-deported-port-entry/ https://www.happyschools.com/h1b-visa-deported-port-entry/ This is a well oiled racket that many people have been running for a while now. Here's an example where feds brought these people down: https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-ceo-in-u-s-may-have-brought-in-nearly-200-foreign-workers-feds/ https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-ceo... There is a lot of fraud in the H1B, EB5 and EB1C visa programs. The administration has tried to crack down on it consistently but the Trump administration has been the most vigorous in its enforcement so far. However, this fraud requires legislative fixes which haven't come in yet. Simple fixes like H1Bs can be used only for direct employees and not for consulting purposes would be a huge boon to American companies. Another fix would be to raise the minimum salary which after 30 years of running the program is still at 65K USD. It will have immediate, positive impact by closing the loopholes used for exploitation. This sort of fraud is also a big reason why people are stuck in years long backlogs for their employment based greencards.

CaliforniaKarl 7y ago

https://outline.com/nLeca8 https://outline.com/nLeca8

HBKXNCUO 7y ago

>There's absolutely no recourse. Why would a person expect to have recourse against a government which exists for the sole purpose of furthering the interests of a group of people to which that person does not belong?

m0zg 7y ago
I wasn't talking about recourse against the government. The government is within its rights to enforce the visa process to protect and regulate the local labor market. I was talking about recourse against the employer. Even if you're terminated wrongfully (i.e. in retaliation for reporting harassment or abuse, legally permitted whistleblowing, etc), it's unlikely that, as an H1-B, you will sue. That makes H1-Bs extra attractive to unscrupulous employers.
- HBKXNCUO 7y ago
  You said there is no recourse after talking about a situation in which no one has recourse against the employer, i.e. if you get fired out of spite for looking for a new job. There is as you know recourse if you're fired illegally, as the American people have been so generous as to grant foreigners the right to sue Americans employers in such cases.
  - m0zg 7y ago
    Yes, but how do you sue if you have to leave the country on a short notice?
    - HBKXNCUO 7y ago
      By hiring a lawyer to represent you.
conanbatt 7y ago
It is the American employer that has no recourse to protest the government restriction on their business!

dangjc 7y ago

We need H1B's for the next generation of scientists, chip architects, and encryption researchers. We should be able to hire an American for a QA role.

tbyehl 7y ago

Why should anyone sympathize with someone who came here on what was supposed to be a non-immigrant visa tied to a particular job and then changes their mind about immigrating / the job? The whole immigration system sucks, and especially H1-B, but let's not pretend only some of the players are gaming it. Everyone is.

abc_lisper 7y ago
H-1B is dual-intent. https://en.wikipedia.org/wiki/Dual_intent https://en.wikipedia.org/wiki/Dual_intent
- deleted 7y ago
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- deleted 7y ago
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- tbyehl 7y ago
  It became dual-intent, which lead to everyone's intent becoming to immigrate, which has lead to incredibly long processing times... https://en.wikipedia.org/wiki/Immigration_Act_of_1990 https://en.wikipedia.org/wiki/Immigration_Act_of_1990
  - stbernardlove 7y ago
    Can you explain how is anyone supposed to convince a US company to spend 2 years and tens of thousands of dollars to sponsor a candidate for an immigrant visa WHILE THEY ARE STILL IN THEIR HOME COUNTRY? For real though, name me a company that hired someone knowing they couldn't start for 2 years, while they get PERM, i-140 etc.
  - tbyehl 7y ago
    I'm taking downvotes here and up there... but people are missing the point. H1-B became a trap because of dual-intent. Someone who always intended to leave the US, as H1-B requires, shouldn't be too bothered that they can't (easily) switch jobs, that a job loss could send them home sooner than anticipated, and they shouldn't have to accept substandard wages or housing or any other body shop abuses we hear about... because they can always just go home, like they'd always intended and should have planned for. Dual-intent baited people to come here on H1-Bs on the assumption that they'll eventually get permanent residency, bring their family over, attain citizenship. Plenty of people risk their lives to get here with no hope of citizenship; putting up with body shop abuses on a path to citizenship is minor in comparison, a lot like staying at a job you've come to dislike to run out the vesting clock. And H1-B is such effective bait because the rest of our immigration policy is screwed up and discriminatory.

conanbatt 7y ago

Im amazed at the level of protectionism expressed in this thread, in this community. I will make an argument for the cynics that believe they should be protected from competition: that immigration restrictions and caps like the H1B curtail the freedom of Americans to buy services from who they want to. American people that run American businesses are prohibited from hiring people they believe to be best suited for the job. There is not "gaming" the visa or "outsourcing companies". US consumes software engineers from abroad at 100x its software engineer immigration, only that they don't pay taxes to the US and export close to 100% of the their trade. It would be much better for the us to bring the people inside America to pay taxes and provide more value for Americans. Incredible to see software engineers buying an apple phone made in china and argue that Americans should not be able to employe chinese software engineers.

pnw_hazor 7y ago
Trump has proposed merit based immigration which would reduce the need for H1B non-immigrant visas.
fred_is_fred 7y ago
Until other countries also decide to drop all their protections we'd be suckers to do it first.
president 7y ago
> I will make an argument for the cynics that believe they should be protected from competition: that immigration restrictions and caps like the H1B curtail the freedom of Americans to buy services from who they want to. American people that run American businesses are prohibited from hiring people they believe to be best suited for the job. This argument makes sense from the point of a business owner but not necessarily for the average American who will lose his job to a foreign worker that will work ungodly hours for considerably less pay. And over time, working ungodly hours will then become the norm and get worse and worse over time as the cycle continues. But yes, there is plenty of money to made if you're a business owner who can hire plenty of cheap and willing workers.
- 7y ago

Rch_East 7y ago

The H-1B program is so flawed I wonder if it would be better to just cancel it. Replace it with a program which prioritises America's military and cultural allies: UK, Canada, Australia, New Zealand, South Korea, Japan. Set a minimum salary of $100,000 and let anyone born in (and a citizen of) those countries in.

stbernardlove 7y ago

Signed up just to say this. I don't see the controversy in not counting QA analyst as a specialty position. Just look up what countries like Canada, UK, France consider specialty positions and understand that this isn't a controversy. In fact, I was shocked that QA has been an H1B position in the United States. This is also why there are such massive backlogs for EB-3 for India, despite them getting circa 18% of the cap (7% + unused quota from ROW).

unimployed 7y ago
The truth might be worse than you think. Not only has QA been a popular H1B approved requisition, but so are positions that are simply listed as “Analyst” and “Business Analyst” and so on, as well as the many many variations on “Analyst” (QA or other). It might compete with “Developer” as the most common H1B position.

tracker1 7y ago

How about defining specialty job as paying at least 8x minimum wage, or in the top 25% of paid employees of a company whichever is higher?

whenanother 7y ago
all pay discussions must be qualified with details to whether it is a payment to a contracting company or the contractor or an actual salary with benefits. most foreigners will read your comment and think you are talking about contract payments while us citizens think you are talking about a salary with health and other benefits.
- tracker1 7y ago
  I'm not sure that it entirely matters. 8x minimum wage is already higher than most h1b make. It's about establishing a floor for not abusing the class for cheaper labor. Some companies will still be organised and pay less than others. Nothing would change that without a huge bureaucracy.

tsjq 7y ago

perhaps she filed the case because she knows the amount of super fraud that goes on in H1B visa applications.

WomanCanCode 7y ago

QA doesn't seem like a specialty occupation. We had over 100 QAs in our department with a degree from community college and others for-profit. Some with work experience and no degree.

booblik 7y ago

As someone on work visa myself it is very clear to me that I have the visa to do a specific job at a specific company. I know I may have to leave at anytime. I also know that there is a path to GC, but it is a bonus and not a certainty. Any intelligent person should understand that. Now I am not from India or China, but it still takes years to get a GC. And yes in those years I may like it here very much and start building a life. But if I do, I accept the responsibility that one day it may all be taken away from me, and I will not be pretending to be a victim. So if you started your life here 5, 10, 15 years ago, you knew full well what you were doing, you were a grown adult with at least a bachelors degree. So just stop being a victim. Is the system broken? Yes. Do we as immigrants understand that? Yes. Can we do anything about it? No, this is America, and Americans will or will not fix it.

noworld 7y ago
How is it broken? EDIT: Just wanted to add that I am an American and I would prefer that employers had to raise wages and offer increased benefits to attract domestic workers rather than have the option to import low-wage workers from other countries.
- booblik 7y ago
  I came to this country in part because I was offered a very good salary by my employer, that allows me a very comfy life in San Francisco. They would be cheaper off with a local worker, that would be available for immediate hire, and wouldn’t need an expensive and quite long visa processing. Alas they found none, and not for lack of trying.
- booblik 7y ago
  BTW I think that QA has zero justifications for an H1B visa.

stbernardlove 7y ago

I'm sorry, but if you were forced to accept your initial H1B offer to immigrate to this country, then I believe there are authorities you can report this to. However, it sounds like you came here voluntarily on an H1B and are now disappointed that you still don't have a green card, even though H1B and GC are separate things and no one ever promised you one. Nor does the US govt owes you one.

Winner1234578 7y ago

Good decision!