The Biden Administration Has Green-Lighted H-1B Abuse, and Employers and Labor Contractors are Flooring It



Eliminating virtually all immigration enforcement is not the only “accomplishment” the Biden administration has achieved in its first year in office. While illegal migrants were streaming across our borders at a record clip over the past 12 months, the administration has also cleared the way for still more foreign nationals to enter the country legally to take well-paying jobs that might otherwise have gone to American workers.

Bureaucrats rubberstamping H-1B visa applications doesn’t make for the same attention-grabbing scenes on television as caravans of migrants crashing our borders, but it does have a profound effect on many American workers. Under the Trump administration, the Department of Homeland Security (DHS) sought to end abuse of the H-1B skilled guestworker program by prioritizing applications based on the salaries being offered and the skill levels of the applicants. The rule operated on the logical premise that the larger the salary, the less likely companies would be to bypass American workers, and the more highly skilled the applicant, the less likely it would be to find U.S. workers with matching skills.

During the first full fiscal year of the Trump administration nearly a quarter of all H-1B applications were denied for lack of evidence that the workers were legitimately needed. By the last full fiscal year of the Trump presidency that figure dropped to 13 percent as employers and labor contractors likely got the message that someone at DHS was minding the store.

Those protections for skilled American workers came to an abrupt end one year ago. With Alejandro “Get to Yes” Mayorkas in charge of DHS, the denial rate plummeted to just 4 percent – in all probability not because employers and labor contractors stopped filing frivolous applications, but because they believed (correctly) that all but the most flagrantly frivolous would be approved. In late 2021, the Biden administration sent an even clearer message by formally scrapping the previous administration’s rule that protected U.S. workers.

The most notable results of the fraud-friendly Biden policy was the immediate leap in approval of visas for so-called body shops that subcontract H-1B workers to American employers. The two most notorious of these Indian-based labor contractors, Infosys and Wipro saw their rejection rates fall respectively from 36 percent in FY 2020 to 4 percent in FY 2021, and 26 percent in FY 2020 to 5 percent in FY 2021. (In the case of Infosys, the number of H-1B applications shot up from 3,057 in FY 2019 to 15,896 in FY 2020, indicating that the closer scrutiny applied by the Trump administration deterred the filing of questionable applications.) Likewise, Cognizant, a large U.S.-based labor contractor saw its rejection rate plunge from 43 percent in FY 2020 to just 1 percent last fiscal year.

In a recent directive, Mayorkas has already instructed Immigration and Customs Enforcement officers to adopt a hands-off policy to workplace violations, absent compelling evidence that foreign workers are being exploited. There is little reason to believe that DHS or the Department of Labor will be any more vigilant about ensuring that H-1B workers are not being used to displace or replace American workers.

About Author

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Ira joined the Federation for American Immigration Reform (FAIR) in 1986 with experience as a journalist, professor of journalism, special assistant to Gov. Richard Lamm (Colorado), and press secretary of the House Defense Appropriations Subcommittee. His columns have appeared in National Review, LA Times, NY Times, Washington Post, Newsweek, and more. He is an experienced TV and radio commentator.

FAIR blogs can now be found on our main site at https://www.fairus.org/blog