Last Updated on May 7, 2024
In the latest episode of Immigration and Mobility Decoded, we spoke with Cecilia Esterline and Matthew La Corte from the Niskanen Center.
Cecilia discussed the hurdles small businesses face in securing H-1B visas, emphasizing their vital role in driving economic growth. Matthew shared insights on political dynamics surrounding immigration legislation. Despite challenges, they remain hopeful for incremental changes.
Join us as we explore potential avenues for H-1B visa reform. Below is a brief and lightly edited transcript of this conversation.
Immigration & Mobility Decoded:
With the H-1b lottery coming up in March, I wanted to talk to you both about the H-1B visa. We all know the H-1B, only 85,000 visas, 20,000 are set aside for those with advanced degrees, very, very competitive.
I was just talking with a partner from Corporate Immigration Partners, and I believe that last year there was a 10 to 15% chance of being selected. Tech dominated. A lot of STEM occupations are looking to get H-1Bs.
Cecilia, you wrote that small businesses, to get back to that, create two out of every three new jobs and they account for 44% of all economic activity in the US. But you argue that these businesses aren’t reaching their full potential. How so?
Cecilia Esterline:
I think that that’s important to understand. When you talk about how tech dominated the H-1B lottery, you often see that most H-1B lottery slots go to a small pool of big companies. And that’s great because they’re creating jobs and obviously need those people because to meet the qualifications of the H-1B, they must demonstrate there is a need for them.
And so I think that’s important and it’s not necessarily to take away jobs from those companies, but rather there are these smaller businesses, as you noted, that small businesses are creating, especially new businesses, I will say, new small businesses are creating a lot of new economic opportunities and they’re really important to our innovation as a country and something that we need to be concerned about.
Cecilia Esterline:
And so being able to bring the talent that they need or keep the talent that they need, because often they might need someone who studied artificial intelligence. We don’t exactly have people who studied their master’s degree in artificial intelligence 25 years ago because these are new fields that didn’t exist 25 years ago.
So making sure that we have the capacity to keep and retain people who are here now, and also to create new visa pathways for the people that they need. That’s really important because if a small business doesn’t have the talent that they need, they will opt to move elsewhere. And they can move to Canada, they can move to another location that might have more favorable visa policies for them. A large company, if they don’t get all their slots in the H-1B lottery, they have the capacity to move that one person to Canada, for instance, and have them working remotely.
Cecilia Esterline:
But smaller companies don’t have the capacity to divide their staff and have someone working from wherever. So I think that’s really important that we recognize the value that small businesses are bringing and make sure that we create pathways if it’s not through a new visa pathway, but just acknowledging what we do have is the H-1B and making sure that we utilize it to the best of its ability. And that is ensuring that small businesses can have that allocation. Maybe it’s not an additional allocation, but similar to the advanced degree exemption, that they would have a similar allocation.
Immigration & Mobility Decoded:
So, if you could change the H-1B system to help small businesses, what would your ideal scenario look like?
Cecilia Esterline:
I think it’s important to create some criteria based on the size and age of the organization because across the US government, there’s not really a particular singular definition of a small business. This depends on the industry and the type of work that they do.
So, we can conclude by discussing what a small business is and maybe restricting new small businesses that are creating the most jobs and then being able to set those aside. Maybe it’s 10,000, maybe it’s 5,000, whatever it is, just creating an exemption to make sure that they’re given an opportunity to get the talent that they need.
Immigration & Mobility Decoded:
I think that’s a good call out because I feel like in the US when we think of small businesses, I think tend to think of them as mom-and-pop shops, but that’s not always the case. I think for a small business, you could have 50, 100 employees. Technically it’s a small business.
And Cecilia, can you break down a little bit more just what small businesses are unable to do versus the larger tech companies? You mentioned they could find another pathway or if you’re a larger company, you maybe have offices elsewhere. Are they just sucking up all the talent?
Cecilia Esterline:
Small businesses play a specific role in the US economy of course, but I think it’s also important to note what they have in terms of business capacity. One person out of an employment staff of 1000 people, if you have to move them to Canada or you can’t get them here immediately, likely the one out of 1000 is not creating the same amount of your business that one person out of a staff of 10 would be doing.
So if you are not able to access 10% of your staff because you are only 10 people in your organization and you cannot get the H-1B for the one person that you need, that’s a much bigger blow to the organization than someone who has 1000, 10,000 employees. So, of course, the small businesses are open to the same opportunities in terms of moving to Canada or other competitors that are eager to take in our talent, but for smaller staffs, that can be much more detrimental and can interrupt business continuity much more.
Cecilia Esterline:
It’s important to recognize that there are limitations to what these organizations can do if they don’t have the people they need, the expertise they need, and they will find it elsewhere.
And we see that again and again and that people will go where they need to go in order to get the talent that they need and the expertise that they need. And if they are fueling the innovation of this country, they’re creating so many patents, they’re creating so many new jobs. If they are not able to do that here, they will end up doing that elsewhere. And I think it’s an important message to understand in terms of our future and who we want to compete with.
Immigration & Mobility Decoded:
Definitely. Matthew, do you think there’s an appetite on the Hill in the administration, current or future, to modify the H-1B to help small businesses and/or other industries or areas of the economy?
Matthew La Corte:
Yeah, I think there’s always interest in small business. If you go to the Hill, small businesses have a high approval rating. Nobody wants to be someone who stands against small business.
We just saw in Niskanen somebody commenting on H-1B or the new H-1B rules in Niskanen. But Congress has never shown much interest in engaging on the H-1B. There are a couple of bills that are introduced every year, but this really seems like it is in the domain of the administration.
Immigration & Mobility Decoded:
I guess that brings an interesting question. Is there a preferred method or preferred way to introduce immigration changes knowing that there is a gridlock Congress and if everything was working correctly?
Matthew La Corte:
The preferred method is legislative. The House passes it; the Senate passes it, and it goes to the White House. That’s the holy grail. That’s what we’re all interested in. Obviously, we haven’t had major immigration reform since the ’90s.
We got close in 2000 and 2007, 2013, 2018, and we go down the list, 2022. And maybe we are close to it right now, but that has evaded us so far. That is the superior method.
What we saw from the Trump administration was a flurry of executive actions, the highest number of executive actions on immigration ever. That is going to be eclipsed by the Biden administration who came in and undid most of those things on day one or year one or up until today. And if President Trump wins again, he’s going to come in and reverse everything that President Biden did.
Matthew La Corte:
We’re stuck in this cycle where everything is temporary. There’s just mass uncertainty in what practitioners and immigrants are facing when it comes to what are the programs and policies that are in place. It’s no way to run an immigration system, but that is what we’re left with given the gridlock Congress.
And so that is one of the reasons we put a lot of effort in trying to work on Capitol Hill because really getting something through in a bipartisan way is the only way to make the generational lasting change to modernize all of these systems and all these programs to add a startup visa to do all these things that we’re interested in. Without that, we have these reinterpretations of existing authorities and we have these new ideas and we have litigation that is ongoing.
Cecilia Esterline:
The modernizing H-1B rule that came out I guess a few months ago now, but the window closed in December for comment.
Immigration & Mobility Decoded:
And what’s your stance?
Cecilia Esterline:
So the comment has a lot of great changes that I think have the potential to improve the program. And one of them that they addressed is the issue of fraud that was happening in the H-1B lottery. And whether it was fraud, they continued to investigate, but there were individuals who had 83 registrations submitted on their behalf.
And I say that if someone has 83 job offers, they should probably go to an O-1 visa because we have a visa for extraordinary individuals. However, within the H-1B, one of the suggestions of the rule if it is implemented, and we’re not sure if it’ll be implemented before this year’s registration or not, is that it would change the lottery from being registration centric, AKA every employer that is offering a job, submitting a registration, and then them choosing based on those, it would change it to be beneficiary centric. So the employee would be the one selected by the lottery.
Cecilia Esterline:
And then they would have a bit more autonomy to say of the 10, 15 employers, maybe 83, that have submitted job offers or registrations on my behalf, I can have a little bit more autonomy to choose where it is that I will go.
And I think that that is a meaningful step and if they’re able to implement it, I think it could be really beneficial for both preventing fraud, but also providing a bit more autonomy to the individuals to pursue the kind of employment that is best for them and the best fit for their skills at also improve some of the ability for beneficiary owners who are maybe owning a startup or are partial owners in a startup to access the H-1B, which is also a meaningful step because we don’t have a startup visa.
We have an entrepreneur minor program, but providing that opportunity for startup owners and beneficiary owners to participate in the H-1B is really important.
Cecilia Esterline:
There are some restrictions on it that in our comment, we suggest that they remove or adjust slightly in order to make sure that the program is able to be utilized fully, but it offers some great steps forward in improving the security of the program and making sure that the individuals who need to be in the US and who are most desirable by the companies are able to get here.
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Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at Corporate Immigration Partners, P.C., or another qualified professional of your choosing. On non-U.S. immigration issues, consult your Envoy representative, or another qualified representative of your choosing.
