H-1B ‘Work-Arounds’ Bring In More Foreign Workers than the Capped Program
From time to time the tech industry calls for more new annual admissions of H-1B workers than allowed by the long-established congressional ceiling of 85,000 new ones each year. The industry always talks about a “labor shortage” and never mentions the advantage to employers of a semi-indentured work force.
What the industry also never mentions is that there are six legal “work-arounds” to the 85,000 total which seem to produce more new H-1B-like foreign workers each year than the mainstream program does. We estimate that 115,000 new H-1B or H-1B-like workers came in during fiscal year 2022, all in addition to the 85,000.
Neither the industry nor the Department of Homeland Security seem to want the whole story to be told but some statistical sleuthing shows the hidden facts.
Unfortunately, part of the statistical basis for the estimated total is a little shaky because in one instance (L-1B) no numbers are available, and in two others we must (needlessly) work with estimates. The government which used to produce estimates of the illegal alien population, a difficult task, does not bother to produce either an estimate of or a count of all the H-1B and H-1B-like workers admitted yearly, a data lack that must please the industry.
The inherent complexity of having seven different programs admitting H-1B and H-1B-like workers (largely, but not exclusively, for the tech industry) makes matters worse. Each program has its own rules, procedures and nuances, and each is supported or not by its own statistical definitions – in other words, a nightmare.
Our estimates (and government counts) for each of seven programs are shown in the table, which is based in part on an annual DHS publication we call the H-1B Annual Report; its full name is “Characteristics of H-1B Speciality Occupation Workers; Fiscal Year 2022 Report to Congress” and can be seen here.
Estimated numbers of H-1B and H-1B-like workers, FY 2022 |
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| Program | Estimated annual numbers of H-1B and H-1B-like workers, no dependents | Notes and sources |
| Mainstream H-1B program | 85,000 | 65,000 (bachelors) + 20,000 (advanced degrees); this includes set asides for Chile, 1,400 and for Singapore, 5,400 |
| Universities and non-profits H-1B workers | 47,492 | This is calculated by subtracting 85,000 from the total number of initial approvals reported in the H-1B Annual Report |
| TN visas and admissions from Canada | 60,000 (est) | See text for estimation technique |
| TN visas, Mexico | 8,000 (est) | See text for estimation technique |
| E-3 visas, Australia | 4,731 | State Department: Worldwide NIV Workload by visa category |
| Special Department of Defense projects | 100 | See footnote 9 in H-1B Annual Report for 2022 |
| L-1B Intracompany Transferee Specialized Knowledge (employees of international firms) | The government does not seem to report numbers for this class, so 0 | The theoretical limits would be between 0 and 72,958, the total number of all L-1 visas issued in fiscal year 2022 |
| Total of counts and estimates | 205,323 (partial est.) + an unknown number of L-1Bs | |
| Source: Center for Immigration statisics, Washington, D.C. | ||
Comment. Only two of the seven programs have numerical limits, the other five do not. Those with ceilings are at the numerical extremes of the seven; the mainline program has a ceiling of 85,000 and is the subject of public debate and calls for more than that number of new admissions for private industry. These visas are for three years and are extendable; this posting only deals with new admissions, except for the tiny and rarely discussed one for DoD projects. The latter has a different kind of ceiling, there can be no more than 100 H-1B workers in the country at any one time. (DoD can get an unlimited number of H-1B slots as a non-profit institution, so why the special no-more-than-100 category exists is not known to me.)
The other five programs favor, in turn:
- universities and non profits
- Canadian tech workers
- similar workers from Mexico
- similar workers from Australia
- workers with international corporations (a new category to me and probably a small one)
Aliens in these programs have different sets of rights. For example, a TN worker from Canada does not need a visa; she can simply get her admission at a port of entry. A TN worker from Mexico needs a visa (issued by a State Department official), and so does an E-3 alien from Australia.
Estimation techniques. We used two different calculations for the two sets of TN workers.
With the ones from Mexico, where visa issuance is the norm, there were 33,331 of them in 2022, since this covers both the worker and his/her dependents, which we estimate as three per worker, the earlier figure is divided by four and rounded down to 8,000. This is a visa estimate, not an admission count, as with the next group. For the 33,331 figure go to the State Department work load data cited in the table, where one will encounter the number 33,361 – subtract 30 of the visas, as they were issued to Canadians.
The total of TN workers from Canada must be estimated in a different way, from admissions data not visa issuances. That total has been between 700,000 and 800,000 in recent years and can be seen in Table 25 of the Yearbook of Immigration Statistics, published by DHS. We took 720,000 as a plausible average, then divided by four as we did for Mexican TN families, for a working subtotal of 180,000 admissions of workers; the next step is reasonable, but one for which we have no statistical base. We divided the 180,000 by three for three trips to the U.S. in a year for each worker to come up with a conservative estimate of 60,000 workers; were they to make only two trips a year, that would be 90,000.
The bottom line. Industry complaints about labor shortages and a need to increase the 85,000 ceiling, ignore six other ways that they can secure similar workers from similar provisions in the immigration law, five of them without numerical ceilings. In fact, just about any Canadian college grad – and there must be millions of them – can be hired via TN with no lottery, and no ceilings, all perfectly legally.
But Canadian workers, like American ones, are free workers and not semi-indentured like the ones from India and China; if they lose a job they have the entire U.S. and Canadian job market at their beck and call. Somehow the H-1B industry never mentions that central fact.
