A privileged Class of US Immigrants

For long a long time, the Tech industry in the US has been attracting foreign workers with specialized skills. Currently, in order for a foreign worker to work for one of the US companies, they need to immigrate to the US and obtain a specialized working visa. That visa gives the right to obtain an income and pay taxes to the state and federal government. One of the most common types of visa is an H-1B, which applies to people who wish to perform services in a specialty occupation. There is a list of requirements that each applicant has to qualify for. Applicants must be eligible for multiple requirements, which filter out people with less economic and citizenship privileges. Difficulties and injustices within this standard route through the US immigration system are often overlooked by colleagues and employers of H-B holders at the expense of a lot of suffering and lost value as a result of deep and unjust inequities.

In order to understand those issues, it is important to understand who the typical H-1B workers are. The chart below is from Visual Capitalist that provides an overview of H-1B holders’ occupations. The US immigration system creates different sets of policies to hire people with higher privilege — the majority of the H1B holders have specialized skills and are working in the technology sector. Most of them are working in California, which is a tech hub. Those positions are highly competitive. The top H-1B sponsor is Google. According to pathmatch 1, Google hires roughly 20,000 people annually out of over 3 million applications — a 0.67% acceptance rate. Statistically speaking, it’s easier to get accepted into Harvard (6%) than to get a job at the tech titan.

As someone who went through the H1B immigration process myself, I have heard a wide range of views from fellow H-1B holders, and all of them have different types of experiences. Some people view this experience as the “American dream coming true”. They quickly learn how to play “the game” of “career-building” and assimilate into American corporate culture, reaping its benefits. On the other hand, some have deeply suffered from the immigration process. For instance, they experienced a prolonged wait to get their visa, unclarity within the process, and a lack of empathy and awareness about their immigration constraints from colleagues and bosses. As a result, some of them struggle with constant anxiety from this process, especially because their employer has too much power over them, as I’ll describe below.

American dream coming true.

Let’s begin with the point of view of someone with a positive takeaway from the H1B experience, which they sometimes describe with terms like “the American dream coming true”. It is true that an H-1B visa opens up the doors for legal immigration, new exciting professional possibilities, and decent salaries, which by the standards of a lot of other countries where applicants come from would be considered lucrative money-making. Especially tech jobs, which pay some of the highest salaries in the world.

What does an ideal H-1B visa scenario look like? The H-1B holder who is privileged enough to graduate from a US-based university gets an Optional Practical Training (OPT) visa after graduation. The OPT visa allows students to work in the US before or after graduation for one to two years, depending on whether it is a STEM or non-STEM degree. This policy incentivizes international students who studied in the US to stay and contribute to the US economy and society.

If they immediately get a job upon the OPT expiration, the employer must apply for an H-1B visa to maintain their employment. If USCIS accepts their application, the visa applicant can continue working for their employer, without any additional waiting period or breaks from work.

However, it is important to note that even with the best-case scenario, immigration under H-1B is only temporary. The visa only lasts 3 years, and after that, the employer can reapply only once. Beyond that, they have two options: Leave the US, or compel their employer to sponsor a green card, which grants them long-term legal residence in the US. All of this hinges on the immigrant sticking with their sponsoring employer, which isn’t always desirable or easy. Changing employers under an H-1B visa is not easy. The new employer will have to create a new application for H-1B, which has to be evaluated by the US immigration office, with the possibility of denial, depending on various opaque circumstances. There is a cost for an application, and lawyers, who will have to file the application, which can be quite expensive ($1,720 to $6,470) 2, and not every employer is willing to sponsor.

Competition for both H-1B spots and jobs themselves in the US is high. Tech jobs are notoriously hard to get, even for those who do require a visa. Those who do not already have employment authorization in the US have to compete for the job and a lucky spot within the yearly H-1B cap of 65,000 H-1B visas. Those with the privilege of an advanced degree have the option to have an extra advantage: The advanced degree exemption is an exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher and is available until the number of exempt beneficiaries exceeds 20,000 per year.

This incentivizes students who studied in the US to stay and contribute to US society for a limited period of time, but being in this group of people requires a lot of privilege — The US has the most expensive tuition in the world, and it is extremely hard to afford it, especially for people from countries with lower salaries and costs of living. Most financial aid in universities doesn’t apply to foreigners. This means that most people who are in the US are doing so at a great expense. While there are outliers like people on scholarships or people who obtained education outside of the US, this system selectively targets the global elite, who have relatively easy access to US higher education.

The competition for each H-1B spot grows every year. While the cap 3 of 65,000 H-1B visas hasn’t grown, according to the data from the USCIS data hub, the number of applicants grew more than four times since 2004. The chart below from Vox and RedBus2US shows the growth from the year 2004.

The cost of living in cities where the companies of H-1B holders are located is proportionate to the local average salary. 30.7% of H-1B employers are in California, and most of them are located in the San Francisco Bay area which has one of the highest rents in the world. Rent, taxes, food, and travel eat up the majority of the income. This issue of course applies to any tech workers, including US citizens, but US citizens are free to change employers and relocate when the opportunity arises, and H-1B holders often lack this option.

Lastly, the most discriminatory aspect of this system is that if we compare the compensation of H-1B holders against the compensation of permanent residents or citizens, there is a significant discrepancy for the same positions. According to Economic Policy Institute publication 4, major U.S. firms use the H-1B program to pay low wages for equal talent. Among the top 30 H-1B employers are major U.S. firms including Amazon, Microsoft, Walmart, Google, Apple, and Facebook.

All of them take advantage of program rules in order to legally pay many of their H-1B workers below the local median wage for the jobs they fill. The U.S. Department of Labor (DOL) lets H-1B employers undercut local wages. Sixty percent of H-1B positions certified by the U.S. Department of Labor are assigned wage levels well below the local median wage for the occupation. While H-1B program rules allow this, DOL has the authority to change it — but chooses not to.

This system allows all the US major employers to exploit and profit from H-1B wages in order to pay below-median wages. DOL incentivizes firms to earn extraordinary profits by legally hiring much-lower-paid H-1B workers instead of workers earning the local median wage.

The Immigration process

Even for adequately privileged and qualified applicants, the process of obtaining an H-1B visa is still expensive, complex, difficult, and unpredictable. The H-1B visa costs can range from $1,720 to $6,470 or more depending on attorney fees, optional fees, and employer criteria. In addition to the cost, an applicant needs luck because the first step of the visa application process is the lottery, where applications will be randomly chosen. The only exceptions apply to applicants employed by universities and related nonprofit entities, nonprofit research organizations, and government research organizations. Those entities do not need to go through the initial lottery process.

The chances for every applicant to be chosen in the lottery are not very high. For example, for FY 2022, USCIS received 308,613 H-1B registrations 5 which resulted in only 131,970 selected registrations, which makes approximately a 43% chance of winning that lottery and getting to the next step.

If an applicant is lucky enough to be chosen in the lottery, they then must weather a long evaluation process to identify whether they qualify for all relevant requirements 6. The evaluation process can be very subjective. Immigration officers evaluating the applications have to decide whether the applicant has highly specialized knowledge in a particular field and whether the degree requirement is common to the industry in parallel positions among similar organizations. Lawyers working on H-1B applications, have to describe it accurately and clearly, and in a way that appeals to the immigration officials’ particular understanding of what a company they don’t even work for needs and doesn’t need. People deciding who is qualified have no connection to the field or applicants’ positions, so much of this work is based on a lawyer’s attempt to convince someone without any expertise, rather than the actual applicant’s qualifications.

The whole process can take between two to six months, and applicants have to wait without any certainty if the visa will be accepted, or the ability to work in the US and get paid in the meantime. For people with families and kids, this uncertainty can be even harder. They must shape their lives around a move to the US with no certain moving date that may not even happen while supporting themselves and their families.

H-1B Employers

When and if the application is approved, the applicant will be able to move to the US and start working for their H-1B employer sponsor. Moving requires people to make big long-term commitments such as signing leases, enrolling children in school, and establishing bank accounts and credit. These commitments can to become liabilities if an employer were to let them go. Without the employer’s sponsorship, there isn’t a legal basis for the immigrant to stay, regardless of the prior 3-year commitment. If the job is unexpectedly terminated by their employer, the H-1B holder will have a maximum of 60 days to navigate one of the following options: They can get a new job and arrange for a new employer to submit a costly H-1B petition on their behalf at an expedited speed, they can attempt to change to an alternate legal immigration status, or depart the United States.

Unfortunately, the system of the working agreement between employee and employer is set up highly unfairly. There’s a massive imbalance of power between the H-1B holder and their employer because the employer can terminate their job as they see fit, with no available recourse or appeal process to stay in the US. This imbalance of power between employers and H-1B holders creates a system where employers can freely exploit H-1B holders — their ability to stay in the US is on the line, which creates a system that allows employers to exploit immigrants’ precarious vulnerabilities like lower salaries or more responsibilities.

Culture of H-B employers

Most H-1B workers, who are coming from an elite backgrounds with privileged families and education do not want to identify with immigrants due to negative stereotypes. It is a similar pattern I have seen while living in China when a lot of western immigrants preferred to call themselves ex-pats instead of immigrants. In reality, this is a result of a xenophobic system toward immigrants spreading to foreign workers, who want to assimilate and be part of a “superior” group of people, forgetting to assess their own rights and place in this society.

One great example of a book that describes the history of this xenophobic system towards immigrants is represented in the book America for Americans: A History of Xenophobia in the United States by Erica Lee 7. The author points out how xenophobia is a powerful motivating factor in American politics. Even if it goes against the equally powerful notion that the U.S. is a nation of immigrants. Even as it has welcomed millions from around the world, it has also deported more immigrants than any other nation — over fifty-five million since 1882.

Xenophobia is a form of racism that has been embedded in US laws, and H-1B visa policies are just one example. One way to overcome the alienation that xenophobia brings is to combat the negative stereotypes about immigrants and refugees, and help see them as fellow human beings just like everyone else.

If more H-1B workers, and consequently people around them, acknowledge the unfairness of the overall system and become more critical. Society around them will stop normalizing the unfairness as well. Regardless if you are a refugee or an H-1B worker, all immigrants should be allies to combat the system for more fairness and equality.

Works Cited

1 — “The PathMatch Guide to Getting Hired at Google.” The PathMatch Guide to Getting Hired at Google. The PathMatch Guide to Getting Hired at Google, https://www.pathmatch.com/blog/the-pathmatch-guide-to-getting-hired-at-google.

2 — “H-1B Fees: Who Pays for What and How Much [Updated 3/28/22].” VisaNation, 28 March 2022, https://www.immi-usa.com/h1b-visa-processing-fees-2016/. Accessed 11 December 2022.

3 — “H-1B Cap Season.” USCIS, 23 February 2022, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season. Accessed 11 December 2022.

4 — Costa, Daniel, and Ron Hira. “H-1B visas and prevailing wage levels: A majority of H-1B employers — including major U.S. tech firms — use the program to pay migrant workers well below market wages.” Economic Policy Institute, 4 May 2020, https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/. Accessed 11 December 2022.

5 — “H-1B Electronic Registration Process.” USCIS, 25 April 2022, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process. Accessed 11 December 2022.

6 — “H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models.” USCIS, 21 July 2022, https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations. Accessed 11 December 2022.

7 — Lee, Erika. America for Americans: A History of Xenophobia in the United States. Basic Books, 2019. Accessed 11 December 2022.