
H-1B: Federal judge backs government’s narrower view of ‘specialty occupation’ - protomyth
https://www.mercurynews.com/2019/07/17/h-1b-federal-judge-backs-governments-narrower-view-of-specialty-occupation-in-tossing-indian-womans-case/
======
wharnal
> Sagarwala, according to the ruling in Washington, D.C. U.S. District Court,
> received an H-1B visa in 2012, but those visas are tied to specific
> employers. So when she sought to change jobs in August last year, the
> prospective new employer, outsourcing firm HSK Technologies, had to go
> through the visa application process again.

So she had lived in the US for six years and still had to beg the government
for permission to change jobs? I had no idea it was this bad.

~~~
throwaway082729
I've been here for 17+ years, earn $650k/yr and I'm still in the same boat.
I'm at the mercy of the govt. if I want to change jobs. Moreover, I need to
restart the labor certification process and reapply for my green card though I
get to keep the same priority date. There's no end in sight i.e. I cannot
predict when I'll get my green card due to the per-country cap and backlog.
Worse, I cannot quit and take time off even for a day.

~~~
product50
Surprised this is getting downvoted. These types of salaries are somewhat
common in FANG companies for senior engineers and it is common for some of
them (depending on their nationality) to still wait for the green card for 15+
yrs. I know people here won't like the truth but this is the current reality
for Indian citizens legally immigrated in US.

On the other hand, it is actually easier to get a green card if you are an
illegal immigrant - which is the real thing that boggles my mind. I was
talking to an Uber driver the other day who was from Congo but came illegally
to US and got his green card within 2 yrs. Not saying that the Congo folks
shouldn't get green cards but a high skilled legal immigrant, who is able to
command $300k+ in salary (which is sufficiently high to categorize them out of
the IT body shop type work), is someone US should try to value at least as
much (if not more) vs. an illegal immigrant.

~~~
leakybit
So the rich are more entitled to get a green card?

~~~
paxys
Highly skilled people _should_ be more entitled to a green card (and that
often corresponds to highly paid)

------
gnulinux
As a current H-1B applicant who received RFE to prove 'specialty occupation',
this is giving me anxiety. All my friends in the same company with _exact_
same role, level and education got their H-1B visa last month or so and I'm
still waiting for a response to my RFE. Eh, at least I still have my OPT
STEM...

------
privateSFacct
Ugh, these cases give H1B's a bad name. I do wish there was crackdown on crap
like this.

Where I work the H1B applicants (who don't get selected) have masters, from a
US university, for a degree that applies specifically to their job. These
folks should be on the red carpet to US citizenship. They have checked every
box. Instead they get treated like crap.

They should SHUT DOWN these other players who clog up the process.

a) outsourcing firms that are just numbers game body shop mills.

b) set a minimum comp for the jobs that is reasonable (but include retirement
and other benefits in calc).

c) allow all employers one applicant before awarding more slots, so the body
shop mills have to compete with small business who have real jobs for real
people and are not just playing percentage games (100K applications with 5k
actual jobs available).

I'm a HUGE fan of lots of immigration - but saying H1B is highly specialized
for real jobs, then having the body shop mills apply for 100K slots (they
don't have those jobs), so they can dominate the selections and then profit
off the salary / visa arbitrage is disgusting for all involved. And yes, I
sign real applications that never get selected (and am willing to pay well
over Level 1 and Level 2 wages).

~~~
ergothus
As a baseline, I'm in favor of a lot of immigration and think people have way
too many hoops to jump through in general, but the H1B crowd in particular is
a group that matches even what most of those opposed to mass immigration claim
to desire in immigrants.

That said, i've noticed different "worlds" of H1B worlds, with different
impacts upon other workers.

I did a govt job on the US East Coast (Richmond, VA) that had a lot of H1B
contract workers, likely from one of these body shops. They were good people,
and adequate if unimpressive coders. They were earning decent US wages and
were painfully aware that losing or leaving a job left them no guarantee
there'd be another for them in the US soon. Management abused the heck out of
these people, establishing practices, expectations, and treatment of coders
that were terrible. They put up with it, but but it lowered the quality of the
workplace for everyone, and the employees and US citizens (naturalized or
born) working there also suffered, and tended to leave when they could. I was
one of them, which put me in Seattle on the West Coast...

...Where I found an entirely different world of H1B workers. These were not
contractors, not through a body shop, and were definitely impressive in their
fields (devs, architects, and QA/Test eng, along with a handful of PMs and
Team Leads). Here there was no reduction of workplace quality - these workers
had lots of extra annoyances I didn't have to worry about (example: apparently
changing your job title during one period of time when applying for a green
card restarts the multi-year process, so I knew of people that declined or
postponed promotions!) but they could definitely find work elsewhere easily
enough - should workplace be unbearable they'd bounce like the rest of us
could.

Whenever the H1-B debate comes up, I reflect on the different impact the
workers had on these offices, and the impact the H1-B rules had on those
workers. Everytime one of my friends debated if it was worth pursuing a green
card or naturalization, I saw the seeming idiotic result of the US chasing
away workers that it said it needed, that had proven themselves, and that
american companies had spent time and money in training and getting experience
to.

~~~
nerdponx
I don't even understand the point of H-1B being tied to a specific employer or
job title.

~~~
yazan94
I think the idea is that the H1B isnt a general 'work visa', it is given
because there is a position at a company for a worker with a specific
skillset. So it makes sense in that framework. I'm not arguing that this is
the right way, just what the reason probably is.

~~~
satya71
You have to see how laws are made in the US. They are written by
lobbyists/corporate lawyers (the lawmakers have stopped pretending otherwise
these days). For the company, it totally makes sense. They spent something
upfront (H-1B fees and uncertainties are non-trivial), so they want a
guarantee that this person cannot change jobs easily. That the lock-in is for
6-years is just pure power-play.

------
stbernardlove
Signed up just to say this. I don't see the controversy in not counting QA
analyst as a specialty position. Just look up what countries like Canada, UK,
France consider specialty positions and understand that this isn't a
controversy.

In fact, I was shocked that QA has been an H1B position in the United States.
This is also why there are such massive backlogs for EB-3 for India, despite
them getting circa 18% of the cap (7% + unused quota from ROW).

~~~
unimployed
The truth might be worse than you think. Not only has QA been a popular H1B
approved requisition, but so are positions that are simply listed as “Analyst”
and “Business Analyst” and so on, as well as the many many variations on
“Analyst” (QA or other). It might compete with “Developer” as the most common
H1B position.

------
conanbatt
Im amazed at the level of protectionism expressed in this thread, in this
community.

I will make an argument for the cynics that believe they should be protected
from competition: that immigration restrictions and caps like the H1B curtail
the freedom of Americans to buy services from who they want to. American
people that run American businesses are prohibited from hiring people they
believe to be best suited for the job.

There is not "gaming" the visa or "outsourcing companies". US consumes
software engineers from abroad at 100x its software engineer immigration, only
that they don't pay taxes to the US and export close to 100% of the their
trade. It would be much better for the us to bring the people inside America
to pay taxes and provide more value for Americans.

Incredible to see software engineers buying an apple phone made in china and
argue that Americans should not be able to employe chinese software engineers.

~~~
cat199
> American people that run American businesses are prohibited from hiring
> people they believe to be best suited for the job.

Or american people in positions of power are free to use that power against
their fellow citizens by importing people to do the same work for cheaper?
1859 Atlanta Ga called, they want their labor market back..

~~~
conanbatt
I hope you didn't post this from a computer made abroad, and collaborated in
the exploitation of your fellow nationals.

------
booblik
As someone on work visa myself it is very clear to me that I have the visa to
do a specific job at a specific company. I know I may have to leave at
anytime. I also know that there is a path to GC, but it is a bonus and not a
certainty. Any intelligent person should understand that.

Now I am not from India or China, but it still takes years to get a GC.

And yes in those years I may like it here very much and start building a life.

But if I do, I accept the responsibility that one day it may all be taken away
from me, and I will not be pretending to be a victim. So if you started your
life here 5, 10, 15 years ago, you knew full well what you were doing, you
were a grown adult with at least a bachelors degree. So just stop being a
victim.

Is the system broken? Yes. Do we as immigrants understand that? Yes. Can we do
anything about it? No, this is America, and Americans will or will not fix it.

~~~
noworld
How is it broken? EDIT: Just wanted to add that I am an American and I would
prefer that employers had to raise wages and offer increased benefits to
attract domestic workers rather than have the option to import low-wage
workers from other countries.

~~~
booblik
I came to this country in part because I was offered a very good salary by my
employer, that allows me a very comfy life in San Francisco.

They would be cheaper off with a local worker, that would be available for
immediate hire, and wouldn’t need an expensive and quite long visa processing.
Alas they found none, and not for lack of trying.

------
CaliforniaKarl
[https://outline.com/nLeca8](https://outline.com/nLeca8)

------
dangjc
We need H1B's for the next generation of scientists, chip architects, and
encryption researchers. We should be able to hire an American for a QA role.

------
duxup
I'd really just like to see some sort of minimum pay that is relatively high
so that is these are roles that are something the company feels strong enough
to shell out the money.

$120k? Something like that?

~~~
paxys
$120k qualifies for low income benefits in San Francisco, so yeah that's not
going to matter.

~~~
duxup
Maybe it should be a bidding process ;)

Want the spot, spots are starting at 120k...

~~~
jmpman
The spots should be bid on, and the revenue should be used for STEM education
scholarships of US citizens in the field the job was awarded in. The market is
indicating that there’s a demand for the skill, so let’s increase supply with
“cheaper” US citizens who aren’t going to be costing their employers for the
spots.

~~~
duxup
Oh I like that.

~~~
jmpman
I’d like to see a Presidential candidate run on that platform.

------
WomanCanCode
QA doesn't seem like a specialty occupation. We had over 100 QAs in our
department with a degree from community college and others for-profit. Some
with work experience and no degree.

------
oceliker
This is one of the websites that think you're using a private browser if you
use the iOS 13 beta. I wonder if it is because of new privacy features, or
just because they don't recognize the user agent.

------
tsjq
perhaps she filed the case because she knows the amount of super fraud that
goes on in H1B visa applications.

------
tracker1
How about defining specialty job as paying at least 8x minimum wage, or in the
top 25% of paid employees of a company whichever is higher?

~~~
whenanother
all pay discussions must be qualified with details to whether it is a payment
to a contracting company or the contractor or an actual salary with benefits.
most foreigners will read your comment and think you are talking about
contract payments while us citizens think you are talking about a salary with
health and other benefits.

~~~
tracker1
I'm not sure that it entirely matters. 8x minimum wage is already higher than
most h1b make. It's about establishing a floor for not abusing the class for
cheaper labor. Some companies will still be organised and pay less than
others. Nothing would change that without a huge bureaucracy.

------
Winner1234578
Good decision!

------
yazan94
TL;DR: The student was denied an H1B for a QA Tester role, which requires a BS
in a computer-related field. The argument was that this qualifies as a
specialty occupation. The judge rightfully told her to pound sand.

@privateSFacct has a good point - there are plenty of international students
that get their masters degree here in America and they should definitely be
getting better treatment. I really don't think that there are any actual jobs
that require nothing more than a BS degree and can be honestly considered for
an H1B unless we dilute the definition to mean anything that any occupation
that requires a a 4 year degree (but at that rate, isn't everything a
specialty occupation?).

But there is probably a more systematic problem here - it doesn't seem that
Americans want to get masters/phd degrees as much as international students
do. In 2015: over half of the engineering masters degrees from US universities
were earned by international students [1]. Same issue with PhD degrees [2].
Funny thing is, the average American student scores higher than students from
other highly regarded countries, so it isn't some sort of skill gap[3].
Anecdotally, I know many people who refuse to get a MS because they feel that
they will end up doing the same job for possibly slightly more pay. A lot of
posts on programming subreddits also echo this sentiment (though there
definitely isn't a consensus) - the opportunity cost for delaying your entry
to the workforce by a couple years to get a masters often does not outweigh
the salary and experience you would have otherwise earned in those 2 years
[4][5][6]. I'm sure one can find posts where sentiment is generally one way or
the other, I just liked the first 3 I found.

[1]
[https://www.insidehighered.com/quicktakes/2017/10/11/foreign...](https://www.insidehighered.com/quicktakes/2017/10/11/foreign-
students-and-graduate-stem-enrollment)

[2]
[https://cacm.acm.org/magazines/2015/8/189841-understanding-t...](https://cacm.acm.org/magazines/2015/8/189841-understanding-
the-u-s-domestic-computer-science-ph-d-pipeline/abstract)

[3]
[https://www.pnas.org/content/116/14/6732](https://www.pnas.org/content/116/14/6732)

[4]
[https://www.reddit.com/r/financialindependence/comments/8vse...](https://www.reddit.com/r/financialindependence/comments/8vsev3/did_your_masters_degree_do_you_any_good/)

[5]
[https://www.reddit.com/r/cscareerquestions/comments/7ade5r/h...](https://www.reddit.com/r/cscareerquestions/comments/7ade5r/how_has_getting_a_masters_helped_you_if_at_all/)

[6]
[https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/w...](https://www.reddit.com/r/cscareerquestions/comments/7yrvwe/why_should_i_not_get_a_masters_in_cs/)

~~~
opportune
Americans don't need to get masters/phds to get high-paying jobs in the US,
because we don't need them for the immigration benefits.

In most STEM fields, an MS has very little functional benefits. Oftentimes,
it's the same with a PhD. In fact if you account for the tuition cost (of an
MS) + opportunity cost (lost income and lost advancement) they can be net
negatives.

> really don't think that there are any actual jobs that require nothing more
> than a BS degree and can be honestly considered for an H1B

Uh, software engineering? I know many people with only BS's in CS, Math, or
Physics who are better than most people with MS's or even PhDs. I think
nursing might also be valid (though that is more credential-based, we still
need BSNs).

------
stbernardlove
I'm sorry, but if you were forced to accept your initial H1B offer to
immigrate to this country, then I believe there are authorities you can report
this to.

However, it sounds like you came here voluntarily on an H1B and are now
disappointed that you still don't have a green card, even though H1B and GC
are separate things and no one ever promised you one. Nor does the US govt
owes you one.

------
jimbob45
It's tough to convince America that you _need_ to import immigrants because
there isn't a single American that can possibly fill the job. Some candidate
(cough) is going to bring that up in the next election and I'm not sure I've
seen a legitimate argument against it that isn't a generalization.

~~~
throwaway082729
You mean single, unemployed, qualified American who really wants that job.
There are probably thousands of Americans that can take up that job but don't
want to because they don't want to move or like their current job or don't
like that company, etc.

~~~
neetdeth
Or they can't take up that job because they don't have the credentials because
they didn't pursue education in the field because education in America is
expensive, and there is no market incentive to do so because everyone knows
that the positions that do exist are quickly filled with low-to-median wage
hires with overseas credentials, which is circularly justified by a perennial
shortage of qualified American candidates, somehow, despite a population of
330M.

Even in legitimate cases of difficult to find specialty labor, programs like
H-1B should be sparingly applied because they jam the market signaling
mechanisms that create qualified candidates in the first place.

------
techie128
You'll notice that this person (Usha Sagarwala) doesn't show up on LinkedIn or
has any online presence. That is because most consultancies have a playbook
for these H1B employees which includes falsifying their resume and work
experience in order to secure not only a visa but also a client. This is not
anecdotal but a widespread problem specifically affecting consulting companies
(a.k.a body shops). Here's an example where a student on an F-1 (Student) visa
was denied entry when CBP determined he had lied:
[https://www.happyschools.com/h1b-visa-deported-port-
entry/](https://www.happyschools.com/h1b-visa-deported-port-entry/) This is a
well oiled racket that many people have been running for a while now. Here's
an example where feds brought these people down:
[https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-
ceo...](https://www.mercurynews.com/2018/09/03/h-1b-fraud-indian-ceo-in-u-s-
may-have-brought-in-nearly-200-foreign-workers-feds/)

There is a _lot_ of fraud in the H1B, EB5 and EB1C visa programs. The
administration has tried to crack down on it consistently but the Trump
administration has been the most vigorous in its enforcement so far. However,
this fraud requires legislative fixes which haven't come in yet. Simple fixes
like H1Bs can be used only for direct employees and not for consulting
purposes would be a huge boon to American companies. Another fix would be to
raise the minimum salary which after 30 years of running the program is still
at 65K USD. It will have immediate, positive impact by closing the loopholes
used for exploitation.

This sort of fraud is also a big reason why people are stuck in years long
backlogs for their employment based greencards.

------
HBKXNCUO
>There's absolutely no recourse.

Why would a person expect to have recourse against a government which exists
for the sole purpose of furthering the interests of a group of people to which
that person does not belong?

~~~
m0zg
I wasn't talking about recourse against the government. The government is
within its rights to enforce the visa process to protect and regulate the
local labor market. I was talking about recourse against the employer. Even if
you're terminated wrongfully (i.e. in retaliation for reporting harassment or
abuse, legally permitted whistleblowing, etc), it's unlikely that, as an H1-B,
you will sue. That makes H1-Bs extra attractive to unscrupulous employers.

~~~
HBKXNCUO
You said there is no recourse after talking about a situation in which no one
has recourse against the employer, i.e. if you get fired out of spite for
looking for a new job. There is as you know recourse if you're fired
illegally, as the American people have been so generous as to grant foreigners
the right to sue Americans employers in such cases.

~~~
m0zg
Yes, but how do you sue if you have to leave the country on a short notice?

~~~
HBKXNCUO
By hiring a lawyer to represent you.

------
tbyehl
Why should anyone sympathize with someone who came here on what was supposed
to be a non-immigrant visa tied to a particular job and then changes their
mind about immigrating / the job?

The whole immigration system sucks, and especially H1-B, but let's not pretend
only some of the players are gaming it. Everyone is.

~~~
abc_lisper
H-1B is dual-intent.

[https://en.wikipedia.org/wiki/Dual_intent](https://en.wikipedia.org/wiki/Dual_intent)

~~~
tbyehl
It became dual-intent, which lead to everyone's intent becoming to immigrate,
which has lead to incredibly long processing times...

[https://en.wikipedia.org/wiki/Immigration_Act_of_1990](https://en.wikipedia.org/wiki/Immigration_Act_of_1990)

~~~
tbyehl
I'm taking downvotes here and up there... but people are missing the point.

H1-B became a trap _because of dual-intent_.

Someone who always intended to leave the US, as H1-B requires, shouldn't be
too bothered that they can't (easily) switch jobs, that a job loss could send
them home sooner than anticipated, and they shouldn't have to accept
substandard wages or housing or any other body shop abuses we hear about...
because they can always just go home, like they'd always intended and should
have planned for.

Dual-intent baited people to come here on H1-Bs on the assumption that they'll
eventually get permanent residency, bring their family over, attain
citizenship. Plenty of people risk their lives to get here with no hope of
citizenship; putting up with body shop abuses on a path to citizenship is
minor in comparison, a lot like staying at a job you've come to dislike to run
out the vesting clock.

And H1-B is such effective bait because the rest of our immigration policy is
screwed up and discriminatory.

