Two pieces — one an op-ed and the other in a news article — published one day apart this week underscore the dilemma concerning high-skilled workers, including immigrants, in the United States, as well as the (unfairly balanced) divergence of opinions on whether our country should protect U.S. workers even if doing so harms the bottom line. As importantly, it may lead some to ask whether the Wall Street Journal reads the Wall Street Journal.
“Canada Is Coming for H-1B Visa Holders”. The op-ed, penned by Elliott Kaufman, the Journal’s letters editor, is headlined “Canada Is Coming for H-1B Visa Holders: Tech talent left in U.S. immigration limbo is being lured to my home and native land.”
As Kaufman explains, he is (or was) a Canadian national (the “home and native land” refence is to the second line in the English-language version of the Canadian national anthem, “O Canada”) who attended university in the United States, after which he entered and won the “lottery” for nonimmigrant H-1B status. As USCIS explains:
This nonimmigrant classification applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
Apparently, fashion model and letters editor are two jobs that Americans won’t do, but I digress.
As for the lottery aspect, Kaufman is alluding to what USCIS terms the “H-1B Electronic Registration Process”, under which prospective applicants for that capped nonimmigrant visa category — and their would-be employers — “complete a registration process that requires basic information about the prospective petitioner and each requested worker”.
After that year’s application period closes, USCIS uses what Forbes also describes as “a lottery” that the agency holds “whenever companies file more H-1B applications (or registrations) than the annual limit of 85,000 (65,000 plus a 20,000 exemption for advanced degree holders from U.S. universities)”.
After the “winners” are chosen, the employer can then file a visa petition for the alien. Under section 214(g)(3) of the Immigration and Nationality Act (INA), H-1B status is good for six years, although extensions are available. Once here, H-1B recipients with a sponsor can adjust to lawful permanent status or, in popular parlance, receive a “green card”.
So far, so good, but there are two complaints aliens generally voice about this process.
First, there are more prospective applicants for H-1B visas than there are visas. Per Forbes, “USCIS selected only 14.6% of eligible H-1B registrations for FY 2024, based on a National Foundation for American Policy analysis of government data.”
Second, as Kaufman puts it: “The U.S. also takes so long to adjudicate green-card applications that even H-1B lottery winners are often left in limbo, with unemployment threatening deportation, for years after their six-year H-1Bs expire.”
Sensing an opportunity, Kaufman explains that:
Canada has a new idea: Hold the poutine and eat America’s lunch on immigration. Last week Ottawa announced a Tech Talent Strategy, the first plank of which is to poach America’s H-1B visa holders. Canada will offer flexible work permits with a clear path to permanent residency to skilled legal aliens the U.S. doesn’t seem to want.
If this scheme sounds familiar, it’s likely because my colleague David North wrote about it last week. As North explained, however:
It is not immediately clear whether the program’s limit is 10,000 for workers per se or for both workers and family members, but the other provisions appear more generous than those of the American H-1B program. For example, the worker’s ability to “work for just about any employer in Canada” is a broader grant than that available to H-1Bs working in the U.S.
Who, exactly, are those prospective H-1B malcontents that Canada is seeking to lure north? According to Kaufman:
The typical H-1B visa holder works in technology, where his skills are in demand. He isn’t taking an American job; he is helping keep that job in the U.S. He commands an impressive salary and pays his fair share in taxes — and more, since he likely works in California or New York.
Kaufman is clear in the first line of his penultimate paragraph that he believes the United States needs to throw its doors open ever wider and accept even greater numbers of foreign workers:
The U.S. holds itself back. It takes in top students from around the world, and then, after a year or three of work (known in bureaucratese as Optional Practical Training), when graduates are able to be more productive, the door slams shut.
“The Richcession Keeps Rolling”. Which brings me to a July 4 “Heard on the Street” article in the Journal captioned “The Richcession Keeps Rolling: The pandemic-triggered unwinding of inequality continues”, by reporter Justin Lahart.
Lahart explains that while a long-anticipated (and feared) recession has yet to materialize, “for many richer Americans, it probably feels like a recession has already begun”.
That’s because those high-wage earners “have been hit harder by layoffs, have been less able to secure wage increases that keep up with rising prices and have been more affected by the slump in profits that began to take hold last year”, even while “overall layoffs have remained low”.
Using data from outsourcing firm Challenger, Gray and Christmas, Lahart reports that, “about one-third of layoffs announced by companies this year have come from tech firms such as Facebook parent Meta Platforms, where the median employee made $296,320 in 2022”.
That’s consistent with the conclusions in a separate Forbes article from November, which found: “More than 42,000 tech employees have lost their jobs so far this month, well over double the amount of any other month in 2022. ... Two thirds of the cuts come from four companies alone: Meta, Amazon, Cisco and Twitter.” Plainly, at least according to the Journal, that trend has continued into 2023.
Putting those layoffs into the immigration context, the Economic Policy Institute reported in April that, the “top 30 H-1B employers” — which accounted for more than 30,000 new H-1Bs in FY 2022, or 40 percent of the total — “hired 34,000 new H-1B workers in 2022 and laid off at least 85,000 workers in 2022 and early 2023”.
Given all of that, the Trudeau government’s plan to poach 10,000 would-be H-1Bs (or H-1Bs and family members) per annum doesn’t seem like it poses that big of a threat to the $23.32 trillion U.S. economy. In fact, it would likely at least provide some respite and relief for those U.S. tech workers who are afraid to find pink slips in their electronic pay envelopes.
The Great Dilemma. That’s not to say that I’m not unsympathetic to Canadians (like Kaufman) and other foreign nationals who want to work in this country on H-1Bs. I’ve visited Montreal in the winter and have no strong desire to live there.
The dueling Journal pieces, however, underscore the high-skilled worker dilemma. On the one hand, ideally, the United States would continue to do what it has done since it’s founding and attract energetic and skilled foreign nationals coming not only to grab their slice of the pie, but to grow that pie for everybody.
On the other hand, the country has an obligation to ensure that those American workers already here (both citizens and lawfully admitted immigrants) can support themselves and their families without facing unfair competition from laborers (or fashion models and letters editors) from abroad.
Congress has placed its meaty thumb on the latter side of the scale. Section 212(a)(5) of the INA explicitly bars the admission of:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor ... unless the Secretary of Labor has determined ... that- (I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. [Emphasis added.]
While that provision only applies to those coming to work as immigrants — not nonimmigrants — it clearly demonstrates the legislative branch’s expressed interest in protecting all U.S. workers.
Moreover, among the regulatory “labor condition application” requirements for H-1B employers are that the employer will pay “the greater of the actual wage rate ... or the prevailing wage” and that the employment of the nonimmigrant “will not adversely affect the working conditions of workers similarly employed in the area of intended employment” — tracking the statutory language.
The problem, from an intellectual and emotional perspective, is that we can identify the 85.4 percent of the losers in the H-1B lottery, but we won’t know the name of the laid-off Meta bro until he’s already been shuffled out the door and onto the mean streets of Menlo Park.
By then, few will care that a Stanford or Berkeley grad who was making six figures must scramble to find new employment.
On the other hand, Cisco — and more importantly Meta, Amazon, and Twitter — have the world’s largest megaphones they can use to paraphrase former GM head Charles Wilson and pronounce that “What is good Cisco, Meta, Amazon, and Twitter is good for our country.” You can starve us for unending foreign labor if you want — but if we suffer, you’ll suffer, too.
None of this is meant to attack either the Journal or its staff. But it is offered to underscore the dilemma and the (unfairly balanced) divergence of opinion on whether — when it comes to foreign workers — our nation owes an obligation to our fellow Americans or just the bottom line. Congress has already spoken, and done so clearly, in favor of American workers.