By Liz Henderson
“I am a big believer in technology and will be a strong supporter of expanding tech capabilities in the United States. As President, my goal would be to ensure that the intellectual property produced in America remains the property of those who produce it. Letting other countries steal our property will not happen on my watch,” states Donald Trump. The President-Elect believes in technology, but what about the number of people working in technology that are immigrants?
The H-1B visa is a vital tool for tech companies who rely on other countries for skilled developers and engineers. H-1B is a temporary residency for work, but companies can then sponsor if they want the employee to remain in the United States for permeant residency. Trump has been quoted saying that the U.S. should not have the H-1B visa because it is bad and unfair for American workers. President-Elect then stated that he is in favor of highly-skilled immigration especially when coming to study at universities. The H-1B visa might be altered and there could be tougher clamp downs on “abuses” in the current system.
Congress’s current yearly cap on the number of H-1B is 65,000 with 20,000 exemptions for master’s degrees or higher education. There are other exemptions and roll overs that increases the number allowed into the U.S. on H-1B visas. In 2012, there were over 135,000 H-1B visas. Congress and the President together can change the evolution of the H-1B visa.
The Immigration Act of 1990 was under the George H.W. Bush Presidency, which set up the basic rules for the Labor Condition Application. The Immigration Act of 1990 also set a cap of 65,000 on new 3-year H-1B visas, which included transfer applications and extension of stays. The next two revisions of the H-1B was under President Bill Clinton. First, in 1998 there was a temporary increase to 115,000 for 1999 and 2000 under the American Competitiveness and Workforce Improvement Act (ACWIA). ACWIA also introduced the concept of H-1B dependent employers and added additional attestations about non-displacement of U.S. workers. Next in 2000, the cap was again increased to 195,000 from 2001-2003 and the fee increased from $500 for retraining U.S. workers to $1,000. Then President George W. Bush in 2004 changed the H-1B again with the H-1B Visa Reform Act of 2004, which returned the cap to 65,000 with an added cap of 20,000 for U.S. postgraduate degrees. Bush’s H-1B Visa Reform Act of 2004 also increased the fees and added anti-fraud fees. Then, in 2009 President Obama updated the H-1B visa with no change in fees or caps, but requiring additional attestations from H-1B dependent employers.
President-Elect with Republican Congress could make drastic changes on the H-1B visa under a new Act. Trump said that this country still needs skilled people, therefore they could be able to come in under H-1B visas. The only problem is what defines skill and what does the U.S. “need?” Only time will tell.
Student Bio: Liz is a Staff Writer on the Journal of High Technology Law. Liz is also the Vice President of Women of Color Law Student Association, Massachusetts Bar Liaison, and on the current Massachusetts Bar Association Law Student Section Council. She is currently a 2L at Suffolk Law. She possesses a B.A. in Political Science and Economics from the University of Pittsburgh.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.