Previously, I cut through the gaslighting on H-1B visas and walked through the statutes to show the how H-1B program is designed to replace Americans with cheap foreign labor. It is explicitly legal to replace Americans with H-1B workers and the faux prevailing-wage system is designed to allow employers to pay those foreign workers ridiculously low wages.

Skip the spin, go through the statutes, and you find that H-1B is nearly perfect in its designed goal of replacing Americans. The only flaw standing between H-1B and perfection in that goal is the annual quotas. By allowing “dual intent” (where applicants for the visa can intend both to return home and to remain in the U.S.), H-1B predictably became a try-to-buy program where green cards became a publicly provided fringe benefit for employers to induce aliens to accept jobs that bind them to the employer for an extended period of time.

The claims that H-1B are for skills, shortage, global talent or anything like that are gaslighting with no basis in reality. Except for fashion models, there is no skill requirement for H-1B. A mail-order degree from a foreign diploma mill is all it takes to qualify for H-1B. Indeed, an industry of selling diplomas to qualify for visas has developed. Consistent with its lack of data collection in order to hide the state of H-1B, USCIS does not keep track of where H-1B workers got their diplomas. When a diploma mill comes to light, USCIS has no way to identify whether its fraudulent documentation was used to get H-1B visas. The existence of Congress’s requirement that visas be awarded in order of petitions filed refutes any claim that skill was a goal of H-1B. The labor market tests that existed prior to 1991 were removed in H-1B, destroying any claim that H-1B was actually designed to address shortages.

H-1B is and always was about cheap labor.

Many misconceptions about H-1B put forth on line: “If we just did (fill in the blank – say, raise the minimum salary from $60,000, require recruitment, or some other simple change) it would solve all the problems.” Even the $60,000 minimum salary is a myth.

The fundamental structure of H-1B precludes any simple solution to cleaning it up. For example, the H-1B program separates the labor parts from the actual visa petition. The first step in the H-1B process is for the employer to file a Labor Condition Application (LCA) with the Department of Labor. In the LCA the employer “certifies” a job, the prevailing wage, the wage to be paid, that there is no strike or lockout, whether the employee has a master’s degree, and (for certain employers) whether they recruited Americans in good faith. Yet there is no link between the LCA and any actual foreign worker. In fact, the Department of Labor is required to allow the employer to specify multiple workers on the LCA.

There is no way to check the validity of what is submitted on an LCA because, at the time the LCA is approved, it is processed in a vacuum. Employers certify the employee has a master’s degree when there is no employee. In fact, many LCAs are never used to get an actual H-1B visa. Furthermore, the Department of Labor is required to rubber-stamp LCAs that are properly filled out within seven days.

When the employer files a visa petition, it includes the LCA. This is the first time there is a link between a specific worker and a specific job. This would be the time to check whether the terms of the LCA had been fulfilled. If USCIS finds a violation it should be able to report that back to the Department of Labor for investigation. But the lobbyists who wrote the law are a step ahead of good government: the law expressly prohibits the Department of Labor from investigating based upon such information. There are no simple fixes here that will transform H-1B into some kind of rational program.

Another myth that circulates about H-1B is that it veered away from its original intent to attract top talent to work in the U.S.

No, H-1B was designed to be malicious from the start. The LCA system segregated from the visa petition demonstrates that that authors knew they were designing a system to allow employers to abuse it with impunity. Those involved in its creation who say otherwise fall into one of two categories: the prevaricators, who knew what they were doing, and the inept, who got rolled and now try to revise history to cover their blundering.

Reforming H-1B is a futile exercise. Trying to transform a program whose very purpose is to replace Americans with foreign workers (and is nearly ideal for that purpose) into something else is like attaching wings to a rowboat so it can fly across the Atlantic. You can’t "fix" what isn’t broken. Further complicating the problem, what would that “something else” be? 

H-1B needs to be ended.