United States: H-1B Visa Statistics And Anticipated Future Trends

Last Updated: September 4 2017
Article by Melissa B. Winkler

COMMENT

Introduction

One key priority of the Trump administration is to limit immigration, in part through enacting visa reform, in order to increase enforcement and encourage policies that benefit US workers. Consequently, early in April 2017 the US Citizenship and Immigration Services (USCIS)1 the US Department of Labour (DOL),2 and the US Department of Justice (DOJ)3 announced plans for better inter-agency coordination regarding H-1B visa fraud and abuse and to review the H-1B programme in more detail.

On April 18 2017 President Trump released an executive order entitled "Buy American and Hire American"4 in which the secretary of state, the attorney general, the secretary of labour and the secretary of homeland security were prompted to suggest reforms and propose new laws to ensure H-1B visas are awarded to the most skilled or highest paid beneficiaries. In line with these developments, USCIS5 and the DOL6 have published reports detailing the existing H-1B trends.

USCIS and DOL reports on H-1B petition filings

Birth country

The vast majority of H-1B petitions filed in 2017 (247,927 out of the 336,107 or 74%) were for beneficiaries born in India. Although second, China was significantly below India with 36,362 filed petitions. The Philippines, which ranked third with 3,161 filed petitions, demonstrated a large gap below India and China. All other top filing countries had petition volumes of between 1,000 and 3,000.

Occupations

Over the past 10 years, the vast majority of H-1B filings have been for computer and IT-related positions, such as computer systems analysts (22.1% of positions certified by the DOL), application software developers (15.8%) and computer programmers (9.5%).

In its recent policy memo entitled "Rescission of the December 22, 2000 'Guidance memo on H-1B Computer Related Positions'", USCIS indicated that based on the definition of 'computer programmer' in the DOL's Bureau of Labour Statistics Occupational Outlook Handbook (OOH), it has concluded that most computer programmer positions would not qualify for H-1B visas, as many such positions do not require a bachelor's degree or higher. Therefore, computer programmer positions may not rise to the level of a specialty occupation as required by H-1B visa regulations.7 The memo also stated that other positions which fall into OOH classifications which generally, but not always, require a four-year bachelor's degree may draw additional inspection for meeting H-1B specialty occupation standards.

Given the high demand for technology positions, companies will likely continue to sponsor a large number of foreign workers for computer-related positions under the H-1B category. However, it is likely that companies will shift away from computer systems analysts and computer programmer positions which will likely face a higher level of scrutiny from USCIS.

Compensation trends

The USCIS report found that the majority of 2017 petitions (105,827 out of 336,107) were filed with a beneficiary compensation level between $50,000 and $74,999. The next largest group (99,326) had levels between $75,000 and $99,000, while the third group (59,988) had levels between $100,000 and $124,999.

At present, an H-1B beneficiary is exempt from additional special attestations that apply to H-1B dependent employers if they receive an annual wage of $60,000 or higher or have a master's degree or higher. In January 2017 Representative Darrell Issa introduced a bill that would eliminate this exemption and require any company paying an H-1B worker less than $100,000 to show that they could not hire an US worker for the same job.8 Moreover, Issa's bill was followed by others, including one by Representative Zoe Lofgren that would set the H-1B minimum salary cap even higher.9 While none of these bills have been enacted into law, it is likely that the minimum salary cap for H-1B positions will increase in the foreseeable future.

Further, the same USCIS memo pertaining to the computer programmer classification also concluded that a Level 1 (entry level) designation may not qualify as a specialty occupation position. Level 1 wage rates are assigned to job offers for entry-level employees who have only a basic understanding of the role and perform tasks that:

  • require limited, if any, exercise of judgement; and
  • provide experience and familiarisation with the employer's methods, practices and programmes.10

As companies shift away from utilising the Level 1 wage, compensation trends will rise for H-1B beneficiaries.

Degree trends

According to the USCIS 2017 report, nearly the same percentage of H-1B petitions were filed for beneficiaries with a bachelor's degree or foreign equivalent and those with a master's degree or foreign equivalent. This may dispel some criticism that companies did not file H-1B petitions to obtain the "best and brightest". Since the H-1B programme annually reserves 20,000 places for beneficiaries with master's degrees (or their foreign equivalent), companies may be filing more petitions for beneficiaries with that qualification in order to increase their chances of approval (as the pool for bachelor's level beneficiaries has historically been much higher, while the 65,000 H-1B pool has remained constant, with a few exceptions, since the Immigration Act 1990). On the other hand, companies increasingly realise the importance of petitioning for only their most qualified personnel, especially in light of accusations that cheaper foreign workers have been replacing perfectly capable but pricier US workers. Consequently, a steady growth in the number of master's level beneficiaries is likely, as companies are increasingly required to substantiate their beneficiary's qualifications over comparable US-based workers.

Other trends

USCIS has also tracked the age of H-1B beneficiaries. Over the past decade, over half of the beneficiaries have been between 25 and 34 years old. Studies have shown that an increase in younger foreign-born beneficiaries has significant national economic benefits. The Organisation for Economic Cooperation and Development issued a report that younger immigrants tend to be better educated, have a greater supply of skills and abilities and consequently contribute more to a nation's economy through taxes and other contributions.11 Moreover, as other studies have shown, with the increasing numbers of retirees, US economic growth depends on US-based employers' continuing to attract – and retain – skilled young workers.12

Comment

Although there have been no substantive changes in the law regarding the H-1B visas at present, the vociferous rhetoric demanding visa reform, the introduction of congressional bills sharply increasing minimum salary caps and USCIS's announcement of greater scrutiny of H-1B petitions demonstrate that there is clearly momentum towards significant revisions of this visa category.

In light of this, companies will likely shift increasingly towards beneficiaries with higher educational levels and jobs that pay Level 2 wages or higher.13 Moreover, government agency announcements indicate that more scrutiny of all H-1B petitions, irrespective of beneficiary education level or wage level, is likely. As such, there is an expected increase in companies receiving requests for evidence on H-1B petitions. Consequently, all H-1B petitioning employers should prepare for these changes by offering a minimum of Level 2 wages for all prospective beneficiaries, by selecting beneficiaries with higher educational attainments and anticipating additional scrutiny.

Footnotes

(1) www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse.

(2) www.dol.gov/newsroom/releases/eta/eta20170404-0.

(3) www.justice.gov/opa/pr/justice-department-cautions-employers-seeking-h-1b-visas-not-discriminate-against-us-workers.

(4) www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american.

(5) www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/h-1b-2007-2017-trend-tables.pdf.

(6) www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/H-1B_Selected_Statistics_FY2017_Q1.pdf.

(7) www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-17197/0-0-0-18003.html.

(8) https://issa.house.gov/news-room/press-releases/issa-introduces-bill-stop-outsourcing-american-jobs.

(9) https://lofgren.house.gov/uploadedfiles/high_skilled_bill_sxs_and_analysis_-1-2017__final.pdf.

(10) www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf.

(11) www.oecd.org/migration/OECD%20Migration%20Policy%20Debates%20Numero%202.pdf.

(12) https://fivethirtyeight.com/features/immigrants-are-keeping-america-young-and-the-economy-growing/.

(13) www.congress.gov/bill/115th-congress/senate-bill/180.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Melissa B. Winkler
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions