Are H-1B visas for workers with hard-to-find skills in Trump’s cross hairs?

President-elect Donald Trump’s anti-immigrant campaign comments have raised questions about what changes his administration might have in store for the H-1B temporary work visa program that many technology companies, including those in the Triangle, rely on to hire foreign workers with hard-to-find skills.

Trump amped up the speculation last week when he issued a two-and-half-minute video outlining executive actions he plans to take on “day one” of his administration.

“On immigration,” Trump stated in the video, “I will direct the Department of Labor to investigate all abuses of visa programs that undercut the American workers.”

Trump didn’t single out any specific visa program; nor did he specify what abuses he believes are hurting American workers. But critics have long contended that some employers, especially outsourcing companies, exploit the H-1B visa program to import foreign workers who they can get away with paying less – even though those workers are supposed to be paid the prevailing wage for their particular occupation.

Supporters of the program counter that companies use the program to hire foreign workers who are highly paid because they possess rare skills that are dearly needed.

Cary business analytics software giant SAS currently has 122 employees with H-1B visas – including 77 with master’s degrees and 21 Ph.D.s.

“We have a difficult time filling these heavily analytically oriented positions, the people that can help create new software using the latest, most advanced analytical techniques,” SAS co-founder and CEO Jim Goodnight said in an interview. “For example, to find a Ph.D. in operations research, it takes us almost two years on average.”

Operations research, Goodnight said, “is mainly optimization of different processes that go on inside a company,” such as finding the optimum route for shipping a product.

H-1B visas, which are granted for up to three years and can be extended for an additional three years, are limited to workers with at least a bachelor’s degree and are capped at a maximum of 85,000 foreign workers each year; 20,000 of those visas are limited to workers who have at least a master’s degree.

Demand for the visas, which the companies apply for rather than the worker, has been exceeding supply. In each of the last four years, applications for H-1B visas submitted in April have exceeded the 85,000 cap within the first five business days of the onset of the annual filing period, triggering a lottery to determine which companies receive the visas.

Last year employers in North Carolina requested nearly 34,700 H-1B visas for positions that paid an average annual salary of $77,000, according to the U.S. Department of Labor. Only a small portion of those were filled.

Nearly two-thirds of the applications are typically for STEM occupations – science, technology, engineering and mathematics – according to the American Immigration Council, a pro-immigration group.

Raleigh immigration lawyer John L. “Jack” Pinnix said that some of his small business clients don’t even bother to apply for H-1B visas anymore because they can’t count on winning the lottery.

What Trump has said

On the campaign trail, Trump made statements that both supporters and critics of the H-1B program can take solace in.

During a Republican presidential debate in October 2015, Trump was asked about the H-1B program and, according to The Washington Post, he replied: “I’m in favor of people coming into this country legally. ... As far as the visas are concerned, if we need people, it’s fine. They have to come into this country legally. We have a country of borders. We have a country of laws. We have to obey the laws. It’s fine if they come in, but they have to come in legally.”

But in March, Trump lambasted the program, saying that the immigrant workers were being brought in “for the explicit purpose of substituting for American workers at lower pay.” He added that if he was elected he would “end forever the use of the H-1B as a cheap labor program.”

Given those contradictory stances, Pinnix said in an interview that he wouldn’t be surprised if the H-1B program is “improved,” which from his perspective would include changes such as raising the cap. But he also said wouldn’t be surprised if the program is “totally annihilated.”

Rob Atkinson, president of the Information Technology and Innovation Foundation, a technology think tank in Washington, D.C., said that it’s difficult to predict where the Trump administration will want to go with the H-1B program.

But, Atkinson added, based on Trump’s public pronouncements – including last week’s statement – “he sees the H-1B visa program as problematic and wants to rein it in. I think he would do that in at least a couple of ways.”

Reining in the program

Atkinson said he anticipates the Trump administration will move to tighten and more strongly enforce the requirement that companies seek to recruit American workers for a position before seeking an H-1B worker.

Although companies employing a large number of H-1B workers must declare in writing that they couldn’t find qualified American workers for the jobs, that requirement is waived if the H-1B workers are paid at least $60,000 a year – a low bar for technology workers – or if they have a master’s degree.

Atkinson said he also foresees the Trump administration boosting enforcement of the requirement that “you have to pay an H-1B visa worker what the prevailing wage is for an American worker.”

“By and large, most American companies already do that,” Atkinson said. But he added that some companies, particularly foreign outsourcing companies, “may not pay the prevailing wage.”

It’s also certainly possible, said Atkinson, that Trump might advocate that Congress lower the number of H-1B visas available each year.

If that happens, he said, “the impact will be that it is just going to be hard for technology companies to fill the particular skills they need, particularly high-in-demand skills such as data scientists,” Atkinson said. “It will be harder to get those people and harder to expand and grow.”

Whatever changes are in store for the H-1B program, Pinnix noted that for the most part the program is governed by statute, which would have to be changed by Congress.

“My belief is that we are going to have a filing (for H-1B visas) this April just like we had last April,” Pinnix said. “A year from then, we might have a whole different set of circumstances.”

This story was originally published November 26, 2016 at 11:34 AM with the headline "Are H-1B visas for workers with hard-to-find skills in Trump’s cross hairs?."