Immigration Wish List: New, Improved, Pro-U.S. Tech Worker H-1B Visa

Polling shows that 72 percent of likely voters think the country is headed in the wrong direction. No other conclusion could possibly be reached. Inflation is up 8.5 percent since March 2021. At the pump, AAA calculates that the average price per gallon is $4.12, compared to $2.86 a year ago. The Southwest Border is a sieve; record high numbers of illegal immigrants, including single adult males and unaccompanied minors, continue to enter at will. Despite White House denials, rumors persist that the U.S. will soon send soldiers to the Ukraine.

Inflation, the porous border and Russia’s invasion of the Ukraine have kept another persistent problem out of the headlines – the continued displacement of qualified U.S. tech workers from their well-paid, white-collar jobs. Attribute the blame to the cheap-labor-addicted employers who significantly underpay their foreign-born workers. In December 2021, an Economic Policy Institute report coauthored by Ron Hira and Daniel Costa found that thousands of skilled migrants with H-1B visas working as HCL Technologies subcontractors at well-known corporations like Disney, FedEx and Google have been underpaid by at least $95 million. The victims are the underpaid H-1B employees, the displaced U.S. tech workers and others in related fields whose working conditions are downgraded when employment-based visa workers are underpaid without consequence.

For more than 30 years since the Immigration Act of 1990 created the H-1B visa, Congress has winked at users’ rule-bending year after year. By ignoring the deeply rooted problems in how the H-1B employment-based visa is acquired, Congress invites more of the same manipulation. To wit, during 2022’s first few months, criminal charges were filed against Bay Area fraudsters – two pairs of two individuals each – who gamed the complex H-1B rules for substantial financial gain.

The first case occurred in February when federal government officials accused two South Bay residents, Namrata Patnaik and Kartiki Parekh, of submitting 85 fraudulent H-1B visa applications. The visa scam was linked to other crimes that eventually led to $7 million in ill-gotten gains. The indictment charged that from 2011 through April 2017 Patnaik and Parekh submitted the duplicitous applications for foreign workers sponsored by PerfectVIPs, a San Jose-based semiconductor company. The company CEO was Patnaik, and the human resources manager, Parekh. Patnaik laundered proceeds of the visa fraud. In all, the indictment included three counts of visa fraud and one count of money laundering.

The second case, perpetrated by Elangovan Punniakoti and Mary Christeena over the decade that ended in 2020, involved 54 fraudulent H-1B visa applications that were sponsored by an IT staffing firm, Innovate Solutions. Punniakoti and Christeena were chief executive officer and president, respectively. The accused swindlers also were responsible for stating in applications that a foreign worker would be working on an internal project for Innovate Solutions, despite knowing that no such project existed. Visa fraud and money laundering carry ten-year, or longer, prison sentences, and hefty six-figure fines.

The solutions to a more functional H-1B visa, or at least guidelines to the remedies, may sound straightforward, but would be difficult to put into effect. The powerful, deep-pockets Silicon Valley lobby has Congress wrapped around its little finger. Nevertheless, here are a few starting points to consider should a pro-American worker Congress take over in 2022: end the current lottery, and replace it with a merit-based system. Specifically and unequivocally define what task a specialty worker performs to prevent marginal workers with average skills from taking an American’s job, and strengthen the Department of Homeland Security’s onsite enforcement powers so that agents can assure that an H-1B worker is actually performing the job identified on his application.

More important, end the H-1B’s dual-intent feature that allows what should be temporary workers – nonimmigrant workers – to apply for a permanent Green Card. And most important, to remove the well-earned, accurate perception that the U.S. government sanctions modern day, indentured servitude labor conditions, take control of the H-1B visa away from the employer. As the H-1B regulations currently stand, the employee is beholden to his employer because he, the employer, controls the visa and therefore foreign-born workers’ immigration status. If, in the employer’s view, the employee isn’t toeing the company line, whatever it may be, the employer can threaten him with a call to DHS, and recommend removal.

The wish list for cleaning up the H-1B visa is long, and while the Biden administration is in the White House, a pipe dream. But for GOP optimists who are looking ahead to November, and envision stumping on American job creation, an H-1B overhaul that benefits U.S. workers would be a good platform to adopt.