H-1B Fee: A Terrible Idea
Guest blogger: Sam Frost, law student, University of San Francisco
In September, the Trump administration announced that H1-B nonimmigrant visas would be subject to a $100,000 filing fee. While US Citizenship and Immigration Services have clarified some points on when the fee applies, some major questions remain unanswered. As of the latest sources I could identify it is still unclear exactly how the fee is to be paid and processed, for instance. However, the overall contours of the program are sufficiently definable to foresee how the fee, if implemented, would affect hiring and what the knock-on effects would be.
First, Big Tech and other high-resource corporate institutions would not be expected to substantially change their hiring decisions based on the proclamation. The immense scale that the FAANG, etc., operate at mean that they have both the resources and the incentive to swallow the additional application fee. When an employee finding a way to make ad delivery .2% more efficient results in a $50 million increase in revenue, a $100,000 fee is not going to stand between Google and the best available talent. Smaller corporations and start-ups, however, cannot swallow such costs, potentially cutting them out of H1-B hiring entirely. Fewer startups would get off the ground, and the decreased odds of success would cool investment. Fewer available companies hiring also means that those corporations that can afford the fee have less competition for the available H1-B workers. Less competition would mean lower wages for H1-B workers.
More dire is how the new fee would affect healthcare facilities in rural and low-income communities. According to the BBC, one in four doctors practicing in the United States were trained abroad, with many of them filling roles at hospitals and clinics in remote and low-income areas. These healthcare facilities rely on hiring international medical graduates precisely because they cannot afford to compete with hospitals in more affluent areas in hiring native doctors. Dramatically increasing the cost of hiring for these facilities would inevitably lead to increasing gaps in care for the communities they serve. Rural and low-income hospitals, already strained by disruptions to Federal healthcare programs, would face increased pressure from lack of staffing. Specialist care may go completely unfilled, meaning people would have to travel long distances or leave their ills untreated. It is not an exaggeration to state that this fee is going to get American citizens killed.
This concern is not allayed by the proclamation containing a “national interest exception.” Contrary to some early expectations, the new fee has no blanket exceptions for particular industries or firms, even those such as rural hospitals where filling positions with immigrant practitioners is obviously in the national interest. Instead, any request for a waiver of the fee would require proving a multi-element test. One element of that test requires the prospective employer to prove that No American worker is available to fill the role. USCIS has not provided any guidance on what kind and quantity of evidence would be necessary to meet the element. It seems absurd to literally require an applicant to prove a negative before waiving the fee, but that is the plain text of the proclamation. Whatever the evidentiary standard ends up being, the process of meeting that standard will inevitably result in increased legal costs for the H1-B application process, limiting the ability of those institutions that need the exception to hire H1-B nonimmigrants even assuming they can prove the exception applies.
Unsurprisingly, the fee is currently subject to two suits attempting to block its implementation. Both Global Nurse Force, an international healthcare staffing agency, and the U.S. Chamber of Commerce have filed complaints alleging that the president exceeded his statutory authority in proclaiming the new rule and that the Departments of State and Homeland Security violated the Administrative Procedures Act in implementing the rule. The CoC is further claiming that the government has failed to make sufficient findings to show that the entry of H1-B workers would be detrimental to the interests of the United States. Neither case has thus far advanced to hearings on the merits or resulted in a preliminary injunction.
In summary, based on the readily foreseeable consequences, there is every reason to believe that the proclaimed H1-B fee is a terrible idea.
bh
