H-1B: Harmful by Design

There has been much discussion of H-1B visas on X recently because of President Trump’s seeming change of heart on the issue. When Donald Trump ran for president in 2016, he campaigned with Americans who had been replaced by H-1B workers and promised to fix the problem.

To some degree he did. For example, President Trump put a halt to the TVA replacing Americans with H-1B workers. Trump was the first president since H-1B’s creation where nothing got worse.

When it became apparent that President Trump was going to win in 2024, big money in the tech industry switched sides to join the winning team, and seems to have gained significant influence.

Sadly, much discussion about H-1B online, in the media, and even in academic publications is disconnected from reality. For example, it is “common knowledge” that employers must show they could not find Americans before hiring H-1B workers. But that is a myth and the opposite is true: It is explicitly legal to replace Americans with H-1B workers.

The starting point is the law. Going to 8 U.S.C. § 1182(n)(1)(F)(i):

(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application.

Yes, this superficially theoretically bans replacing Americans with H-1B workers. Notice the two limitations on that ban:

Moving to clause (ii) one finds:

(ii) An application described in this clause is an application filed … by an H-1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found … have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. An application is not described in this clause if the only H-1B nonimmigrants sought in the application are exempt H-1B nonimmigrants.

An H-1B dependent employer is one with more than 15 percent of its total workforce on H-1B visas. Also note the certain H-1B workers are exempt from this list. Adding clause (ii) gives two more exceptions to when it is illegal to replace Americans.

One has to move down to 8 U.S.C. § 1182(n)(3)(B)(i) to find:

(i) the term “exempt H-1B nonimmigrant” means an H-1B nonimmigrant who—

(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or

(II) has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.

This adds two more exceptions to when it is illegal to replace Americans, giving:

Visas that do not go to universities or government research apply to the annual quotas. Petitions are made in April for visas starting in October (183 days). The 90-day restriction in the prohibition makes it legal to replace Americans at any time when the quota applies to an H-1B visa. Even if this limit were extended, the employer could simply hold off on bringing the H-1B worker into the United States.

There are currently only four employers in the country who are willful violators:

1. Bonzer
2. Ber-IT
3. Macks USA
4. Packet One

All appear to be fly-by-night companies with no present operations.

In order for it to be illegal to replace Americans in any circumstance, you would have to find either a government research laboratory or university with over 15 percent of its total workforce on H-1B visas so that it would be both H-1B dependent and exempt from the quotas. It is unlikely that such an animal exists, making it legal to replace Americans with H-1B workers at will.

Immediately below 8 U.S.C. § 1182(n)(1)(E) — which makes it legal to directly replace Americans with H-1B nonimmigrants — is 8 U.S.C. § 1182(n)(1)(G), which makes it legal to replace Americans with H-1B nonimmigrants supplied by third parties. Like subsection (E), it nominally bans replacement of Americans, but creates the same or similar exceptions that swallow the rule, making replacement legal.

The statutes illustrate that Congress has gone to a lot of effort to make it explicitly legal to replace Americans with nonimmigrant workers, making replacing Americans with foreign workers the very purpose of the H-1B program as embodied in the statutes Congress has enacted. No company has ever been punished for replacing Americans with H-1B workers because Congress made the practice legal.

Bills addressing the provision described here further illustrate Congress’s intent that H-1B be a mechanism for replacing Americans with nonimmigrant workers. Several bills have been introduced that raise the $60,000 salary figure in H-1B. Yet that change does absolutely nothing. Congress could change $60,000 to $60 sextillion and it would have no effect. If would be simpler to add a one-sentence change banning replacing Americans. Such non-changes to the law reaffirm that Congress intends that employers can use H-1B to replace Americans with foreign workers.

The legacy media omits this key fact about H-1B visas because it undermines “The Message”. In the brief spurt of legacy media coverage after Trump’s election, I found numerous articles trying to explain why H-1B is controversial while omitting the fact that it is explicitly legal to replace Americans with H-1B workers. For example, Newsweek tells us “H-1B Visas Targeted by Immigration Officials: What to Know”, but omits that Congress makes replacing Americans with H-1B workers legal.

The AP asks “What makes the H-1B program controversial?” but also leaves out the main reason the program is controversial: the fact that it is legal to replace Americans with H-1B nonimmigrants.

What is on public display with the H-1B program is not an accident. It is what Congress has designed.