郭律师的非正常更23：TM演讲2——关于H-1B

下文是郭律师今天在Toastmaster Club（土司马斯特演讲俱乐部）进行的演讲。这一演讲是基于高阶讲义（advanced manual）《介绍性演讲》（Speech to Inform），第四讲《调查报告》（A Fact-Finding Report）。

这次演讲的主要内容是：向美国听众讲解H-1B制度的过去、现状，并回答H-1B签证持有者是否抢走了美国工作这一问题。

Speech to Inform, #4: A Fact-Finding Report

By Chuck Guo, CC

I am going to give a seven-minute speech, and then take two minutes to answer questions from audience.

Madam Toastmaster, fellow Toastmasters and distinguished guests,

Usually, natives pay no attention to their immigration system. But this was changed during the last presidential campaign. President candidate Trump discharged heavy artillery towards the current H-1B visa system, and painted a picture that H-1B holders are foreign demons that stole American jobs. Whether that assertion is true, is a complex question. But first we need to know what H-1B is.

The current H-1B visa program was created during the Bush administration via the Immigration Act of 2005, which created a humanitarian immigration system. H-1B visa is defined as a temporary working nonimmigrant visa, which is different from the green card, the immigrant visa. Nowadays, the statute provides an annual cap of 85,000 for for-profit businesses, 20,000 of which are for beneficiaries with master degree. Universities and not-for-profitresearch organizations are cap exempt.

The requirements for a petition for a H-1B is to prove the petitioner, a U.S. business, has a job opening that is a "specialty occupation", and the foreign worker possesses the skills and the education to qualify for the position. The definition of specialty occupation is quite complex. Basically, it means a position with a minimum entry requirement of a bachelor’s degree.

To ensure only the best of alien workers get H-1B visa, the statute dictates that the U.S. business has to seek a permission from Department of Labor first, certifying that they should pay the beneficiary a prevailing wage. With this requirement, a lesser competitive potential employee could never receive a job offer from U.S. employers.

Despite the difficult requirements of the H-1B visa program, there is always many more petitions received by Department of Homeland Security than the annual cap of 85,000. One years ago, in the fiscal year 2017, more 236,000 petitions were received. In the fiscal year2018, which is after Trump became the president, the department received 199,000 petitions. So, the department uses an electric lottery system to select 85,000 lucky winners from about 200,000 petitions. Handling this huge volume of petitions is not only a huge demand on the resources of the DHS, but also a tremendous emotional turmoil for the beneficiary.

The main reason so many alien worker wish to go through such turmoil is to pursuit their American dream. Being the most innovated country in the world, U.S. businesses can easily attract first-class minds of the world. There is a similar temporary working nonimmigration visa with a much higher standard, the O visa, for individual alien withextraordinary abilities. But not any average Joe could meet such a high requirement. Thusly, for normal guys like myself, the H-1B visa is the narrow gate to race through.

To exploit the loopholes of the H-1B programs, a lot of IT Consulting Companies was established. They usually file multiple false H-1B petitions for the same beneficiary, which is of cause against the immigration law. Due to the limited recourses of DHS, the adjudicators cannot follow every case close enough to determine whether there is fraud evolved.

For this year, President Trump issued an executive order to “Buy American, Hire American”. This executive order does not mention H-1B program specifically, however, DHS read a change of wind. They issued several policy memos to reflect a stricter scrutiny. These signals give the IT Consulting Companies an alert, which is probably why there is more than thirty thousand drop this fiscal year in the number of new petitions.

Does H-1B visa holder took U.S. job from the Americans? On its face, it probably does. However, I would say no. Because the more workers in U.S., the more demand for services and goods that would boom the economy, which would create more jobs than those H-1B beneficiary took. And with all the complex requirements to file a H-1B petition, it ensures that bono fide petitioners do not take jobs away from Americans. President Trump is wrong on this part.

On the other hand, it is a good thing that President Trump and DHS divert more resources to prevent H-1B fraud. Granted, there are some tiny issues that needs to be twisted for the current H-1B program. However, not much can be done without changing the green card system first.

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