Nonprofits Using H-1B Visa Program Face Uncertainty
January 25, 2017 Julius A. Karash
The H-1B visa program is “certainly is a tool that is necessary to get foreign nationals into the U.S. to be able to conduct research,” said Wayne Carter, president & CEO of Kansas City Area Life Sciences Institute (KCALSI) in Kansas City, Mo. “We hope there is no change. We’re going to be watching the administration to see how things develop.”
Immigration reform was a key campaign issue in the election of Donald J. Trump as the 45th President of the United States. Along with a wall along the border with Mexico to keep out undocumented people, visas for those attempting to enter the country legally also is a hot button issue.
Trump characterized the H-1B visa during the campaign as “very, very bad for workers. We shouldn’t have it.” Trump thus far has not put forth any specific proposals regarding the H-1B program. Nonetheless, anti-immigration sentiments expressed by the Trump and by people being tapped for prominent roles in his administration indicate that the H-1B could be in jeopardy.
“If I were a nonprofit executive right now, I might be a little bit concerned about what types of changes to the program could be implemented,” said Ginger Jacobs, an immigration lawyer with Jacobs & Schlesinger LLP in San Diego, Calif.
The H-1B visa is a non-immigrant visa that allows for-profit companies and nonprofits to employ people in graduate-level fields that require expertise in areas such as science, technology, engineering and mathematics (STEM).
For-profit companies and many nonprofits come under a nationwide cap of 65,000 H-1B visas per year, plus 20,000 for an advanced degree exemption. Nonprofits are exempt from any cap if they are institutions of higher education; related to or affiliated with an institution of higher education; or a research organization.
Petitions for H-1Bs are filed by employers. According to a Feb. 16, 2016 Department of Homeland Security report to Congress, 29,227 H-1B petitions were approved for nonprofits in the cap-exempt category in fiscal year 2015.
According to data on the web site myvisajobs.com, colleges, universities and professional schools filed 26,693 H-1B applications in 2015.
There is widespread consensus in the tax-exempt world that the H-1B program greatly benefits nonprofits, especially those involved in research and education.
Anita Drummond, an attorney with Venable LLP in Washington, D.C., who specializes in nonprofits, said the U.S. higher education sector “prides itself on being a global citizen, bringing together perspectives and the best of the best. The H-1B is a critical part of higher education having the ability to evaluate individuals’ skills, whether in research or teaching or publishing, and attracting them to the United States.”
Jacobs said the H-1B program is “tailor-made for the STEM (science, technology, math and engineering) fields. There are a lot of research institutions that rely heavily on H-1B workers to fill those STEM positions. It’s definitely a concern that research could be stymied or slowed down, if research organizations are not able to hire the folks they really want to hire.”
Lynn Shotwell, executive director of the Alexandria, Va.-based Council for Global Immigration (CFGI), said most H-1B visa holders hired by nonprofits have earned master’s degrees and Ph.Ds, often from U.S. universities. “They’re hiring people who have a lot of talent, often in areas where there are no Americans available to do the job,” Shotwell said.
CFGI is a nonprofit trade association. Of 250 member organizations, about 25 percent are in the university and nonprofit research sectors, Shotwell said.
“My members are watching all of this very closely,” Shotwell said. “One of the things we’re watching is who is going to be appointed to key positions within the administration.”
One of Trump’s most controversial appointment thus far has been his choice of Steve Bannon as chief strategist and senior counselor. Bannon formerly was executive chair of Breitbart News, a far-right Web site that has strongly criticized the H-1B program. For example, Breitbart News posted a story on Jan. 5, 2016, under the headline “Industry, universities hide workforce of 100,000 extra foreign white-collar H-1B employees.”
The Breitbart post said such “white-collar guest workers” are “replacing experienced American professionals — plus their expensively educated children, and the upwardly striving children of blue-collar parents — in the declining number of jobs that can provide a rewarding and secure livelihood while the nation’s economy is rapidly outsourced, centralized and automated.”
Solid statistics on those who overstay their H-B1 visa is hard to come by. Sen. Jeff Flake (R-Ariz.), who has advised Trump and works on immigration issues, has been quoted saying regarding all visa and not just H-B1, “They assume that, yeah, some people overstay — but 40 percent of the illegal population here?”
Shotwell said she believes U.S. employers would prefer to hire U.S. citizens if they could find qualified Americans to fill all of their needs. For example, she said it’s more expensive for employers to hire H-1B visa holders. On top of prevailing wage rules connected with H-1Bs there are “significant filing fees and legal fees” connected with the program, she said.
Thomas Barnett, a consultant and former CFGI board member, said the best way to move more Americans into STEM jobs is not to clamp down on the H-1B program, but rather to improve the U.S. education system to the point where more Americans earn advanced degrees in STEM fields.
“We need to improve the curriculum, and that starts at grade one,” Barnett said. “This is not going to be a quick fix, and it’s not going to be a cheap fix, to help our educational system compete globally.”
Jacobs noted that Trump’s pick for U.S. attorney general is Sen. Jeff Sessions (R-Alabama), who is known for his opposition to visa programs. Sessions, who helped write Trump’s campaign platform, has said he might be willing to eliminate the H-1B program.
In addition, Jacobs noted that Trump advisor, Kansas Secretary of State Kris Kobach, is the architect of Arizona’s tough and controversial immigration law. He advised Trump on immigration policy and added Trump’s promise to build a wall along the Mexican border to the Republican Party’s national platform.
Kobach has done legal work for an arm of the Federation for American Immigration Reform (FAIR). On its Web site, FAIR states that for more than 35 years, it “has been leading the call for immigration reform by offering and advocating solutions that help reduce the harmful impact of uncontrolled immigration on national security, jobs, education, health care, and our environment.”
Said Jacobs, if you look at the prominent people to whom Trump listening “they all have concerns about the H-1B program and want it to be restricted.”
Jacobs said she would advise nonprofit executives to not panic over the prospects of the H-1B program under Trump, noting that it would take an act of Congress to get rid of the H-1B cap-exempt provision for qualified nonprofits.
“However, I would encourage them to think about making any changes they might have considered in terms of moving folks from a non-immigrant visa to permanent residence sooner rather than later,” she said.
Jacobs added that nonprofits should anticipate possible moves to raise prevailing wage regulations for scientists and researchers who hold H-1B visas. “They might have to pay their workers more, and should be thinking about that when they’re grant writing or putting their budgets together.”
Drummond said advocates for H-1B in the private sector “should do their homework and be ready to talk about the value that these H-1Bs bring to those organizations, and how much value those organizations bring to the United States, and ultimately the world, in areas such as cancer research or educational development.”
Barnett said nonprofits should send representatives to Capitol Hill to educate House and Senate staff members about the need for the H-1B program.
KCALST’s Carter said his organization will consider an advocacy and education initiative if it becomes apparent that the H-1B program is in danger.
“From an education perspective, we want to make sure that our legislators are aware of the importance of bringing researchers from around the world into our institutions to do high-quality research for the nation.”
Julius A. Karash is a freelance writer in Kansas City, Mo. Staff of The NonProfit Times contributed to this report.