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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Today, we turn to news of the Trump administration's crackdown on legal immigration. Earlier this month, President Donald Trump signed an executive order upending two categories of worker visas. The H-1B visa is the United States' largest visa category for workers with specialized skills. We'll get into some details on what skills, employers petition, it's the employers on the behalf of workers for specialty occupations that require at least a bachelor's degree, or the equivalent, and that, presumably, there aren't enough Americans to fill those jobs.

The annual limit of visas is currently 85,000. That's 85,000 per year, set all the way back in 1990 when the program began. That stat according to recent New York Times article. Now, in recent years, from fiscal 2017 to 2022, for example, that five-year period, the largest number of H-1B petitioners were based in New York City, 372,100 H-1B visa petition approvals. That's 15% of all H-1B visa petition approvals in the country are in New York, according to the nonprofit, nonpartisan American Immigration Council. We'll talk to someone from there in a sec.

The Trump administration has long held that these H-1B recipients displace American workers, particularly those who work in fields like software engineering, research, and other kinds of engineering. The new executive order imposes a $100,000 fee for new applicants. In addition to that category, the Trump administration has replaced the EB-1 and EB-2 visa categories, those used to go to people of, "Exceptional value to the United States," vaguely defined in that way.

In place of that, the administration has rolled out a $1 million, "Fast track for wealthy foreigners to live and work in the United States," is how Politico put it, that kind of visa. Joining us now to break down the latest, is Jorge Loweree, Managing Director of Programs and Strategies at the American Immigration Council. Hey, Jorge, thanks for doing this. Welcome to WNYC.

Jorge Loweree: Good morning. Thank you for having me.

Brian Lehrer: Listeners, since New York is the home to the largest number of H-1B holders by far, call in and tell us your H-1B visa story, if you're the employee, or if you're the employer. 212-433-WNYC. What was the process of getting your visa like? What has it allowed you to do in the United States that you couldn't achieve elsewhere? Maybe some of you listening now are in the process of getting a new visa, or have friends or family who are in the middle of applying for the H-1B visa.

What comments, or questions, or concerns do you Want to share? 212-433-WNYC, 433-9692, call or text. I guess from Trump's point of view, we would add the invitation, "Okay, employers, fess up. Did you use H-1B visas for years and years to get immigrants who would work at lower rates than Americans?" 212-433-WNYC, 433-9692. Jorge, for those not so familiar with H-1B visas, can you give us some broad strokes of what sorts of jobs these workers have come here for?

Jorge Loweree: Sure, so the H-1B visa category, it's a temporary visa category. It allows employers to petition for highly educated foreign professionals to work in what we call specialty occupations in the US. As you mentioned, there are about 85,000 new visas that are allocated each year, and the professions that people can qualify for, typically, they fall within the STEM fields, from doctors to computer scientists, and many individuals in between, researchers. There is a wide variety of individuals that can qualify for H-1Bs, but again, these are highly educated, and very often very highly skilled folks.

Brian Lehrer: Let me go right to the central critique, and cite not President Trump, but a New York Times article this morning. It said, "Almost since its inception, the program has been plagued with instances of employers who substituted foreign visa holders for American workers, and paid them less. In the early 2000s, the federal government embraced a lottery to allocate scarce visas with no mechanism to elevate exceptional talents over more run-of-the-mill workers." Have companies not been using this program to get highly skilled workers and pay them less than they would need to pay Americans of similar skill?

Jorge Loweree: This H-1B workers being used to cut labor costs, and displace US workers, that is a common argument levied against the program. The undermining of US born workers is a common argument that we hear up and down the immigration system, right all the way down from undocumented immigrants, to the most highly skilled individuals that often come to the US through the H-1B visa program.

What I would say is that these instances, where we've seen layoffs at entities like Disney, these very high profile cases, they are exceptions. They're certainly not the norm. The majority of H-1B hiring is concentrated in innovation hubs like Silicon Valley. Also, places like New York, where there are very well-documented labor shortages. Tech unemployment remains very low. It's often between 2% and 3%, depending on the sort of subsector you're looking at, suggesting that foreign hires aren't displacing domestic workers, certainly not at scale.

Brian Lehrer: Well, the Trump administration is saying this new $100,000 fee would ensure that employers only submit petitions for workers they find valuable enough. Alternatively, according to the White House, these visas can be extended for six years, so by their logic, a lower wage employee would "break even" on that investment, if they stay long enough, but what do you make of the White House's argument? Yes, do you really need this immigrant worker, or temporary visa holder worker from another country, rather than American? If you really do, then $100,000 will be worth it for your company.

Jorge Loweree: Right, so what I would say is that the H-1B visa program, while it's certainly intended to help companies bring in the most skilled and sought after employees that they can possibly find, and people that tend to be the highest earners, it was also intended to help us build the pipeline of talent, including individuals that have recently graduated from institutions of higher education that have talents, and potential that they can someday become those very, very high, very well skilled individuals throughout the US.

Yes, I mean, there is-- If the intent is to strictly limit the H-1B visa program to the highest earners, and the very, very small proportion of most sought after individuals across the tech sector, for example, this very well may be a way to ultimately achieve that, right? When you look at the program as it exists today, the median H-1B worker earns just over $100,000 per year, somewhere in the range of $100,000 to $110,000 per year.

If you're going to layer a fee of $100,000 on top of that, so roughly double the expenses associated with an individual employee for any employer, that the reality is that you're going to do two things. One, you're going to cut the-- You're going to eliminate the pipeline of talent, right?

You're going to cut people who are early career professionals that may have extraordinary ability and talent, and that can be developed over time out of the sector altogether, and you're also going to cut anyone, but the biggest corporations, the biggest companies, the entities that have the greatest resources out of being able to pursue individuals through the H-1B visa category because they-- The only entities that will be able to afford it are those very, very large corporations, so research institutions, nonprofits will no longer be able to do this.

Brian Lehrer: Oh, that's an interesting argument. It would hurt small businesses, or nonprofits or startups the most, because I do see a stat as reported by Al Jazeera, that Amazon leads the pack of H-1B workers with more than 10,000, and the rest of the leaderboard, you can almost guess, Microsoft, Meta, Apple, Google, JP Morgan, Chase, Walmart. You're saying they may be able to cough up the $100,000 per worker that they still want to import.

It's the smaller businesses who may need them, who would get hurt. We have many interesting callers with personal stories. We're going to go to some calls now with our guest, Jorge Loweree, Managing Director of Programs and Strategies at the advocacy group, the American Immigration Council. You hear the arguments that he's making. Peter in Parsippany. You're on WNYC. Hello, Peter.

Peter: Hey, Brian. How are you doing?

Brian Lehrer: Doing all right. You have a story to tell.

Peter: Yes, so I used to be on an H-1B visa many moons back. Probably, the late-'90s, and even at that time, it took me five years to actually go through the H-1B pipeline, and then get a green card, or a permanent residence. The reason it took that long, is because I was a citizen of India. That today, what took me five years, is going to take people from India, probably 30, 40, 50, a 100 years.

It's like silly math at this point, because there are probably 200,000, 300,000 people in the pipeline, and then get no more than 10,000 visas a year, so what this does, is it actually mixes up all incentives. I know people-- When you apply for an H-1B visa, and then want to become a permanent resident, it's for a specific job that you are getting your permanent residence.

What happens when you're waiting years, and if not decades for a job? You cannot take a promotion, you cannot take a meaningful raise. I know people who are on these visas who have refused promotions, refused raises, because then their green card clock starts over again, and they have to wait 5, 6, 10 years. That is so, so wrong, right? That is something that needs to be reformed.

Now, the other thing that I wanted to talk about is a point about how early career professionals would not be attractive anymore because of this fee. It is actually worse than that. Think of yourself as a researcher in India or China today. You have the option to go to Europe, you have the option to go to Canada, Australia, the US. Most choose to come to the US, because we have the best research capabilities and institutions, and there's a well-established pipeline for people to go from there to our labs, to academia.

This totally breaks that, so what will end up happening, is people will stop coming to the US, especially the good researchers will stop coming to the US for higher education, because they don't see a light at the end of the tunnel. They do not--

Brian Lehrer: Make the case, Peter, that that would be bad for the US, because the pushback would be, well, that'll create more opportunity for Americans to grow into those jobs, and probably at higher wages than a lot of the people from India would be willing to take.

Peter: If you look at our MS and PhD programs in the sciences and STEM today, more than 50% are people from outside, and if you look at some very specific hardcore areas like data sciences, it's north of 75%. If you look at our most elite institutions, it's north of 75%. This is not because somehow people from outside are smarter, or Americans are not smarter.

It's just that the US is a magnet for international talent. We will never have all the best and brightest in this country, but as long as we have the ability to attract the best and brightest, our innovation engine will keep humming, and we will be at the leading edge.

Brian Lehrer: Peter, thank you so much for your call. I think we're going to get a different point of view from Don in Samsonville, New York. Don, you're on WNYC. Hello.

Don: Hi. Thank you very much for taking the call. I totally understand Peter's point about the situation that H-1B visa holders in this country suffer through when they're trying to become permanent residents. That's an aspect of what I think the real point of the program is, which is to have a lesser paid workforce that is bound to their employers. I was a programmer for 35 years in insurance companies, and my experience with the H-1B visas, is that they were used to bring Indians to replace American workers.

People who had the skills were already in the job, and we're being let go, in order to be replaced by people who are making 1/3rd of the salary. At one point, I was told to train a young man from India to take my job, and I'd be let go. I did that. Luckily, I found another manager to move me to another position, so I wasn't actually let go, because this fellow took my job, but that was what was going on.

There's a handful of big suppliers of labor in India that flood the lottery system that gets you the H-1B visas, and shut out anybody else, so if you were a small startup company, and had somebody identified that you really needed from France or wherever, you got in the same lottery as Tata, and all these big outfits in India, and you wouldn't get it, because they would get the visas, and those visas be used by American companies to replace their own employees.

Brian Lehrer: What's the solution to this, in your opinion? Is it what the Trump administration is proposing?

Don: No, no. I think in every aspect of immigration policy, the Trump administration is evil. [chuckles] I think that it has to be made fairer. There has to-- I don't know what the legal solution would be, but they can't game the system like that, in order to replace American workers, when the whole point of a visa is to supply labor that cannot otherwise be found in the United States. There has to be some way to tighten that up.

Brian Lehrer: Thank you for your call. We appreciate it. Let's go back to our guest. We'll get some more of your stories in here, but Jorge Loweree from the American Immigration Council, what do you say to Don's story in particular, the caller we just heard, as well as the previous one who did come on an H-1B visa?

Jorge Loweree: I certainly agree with the key point that, if there is misuse, that's certainly a concern. The answer, though, is tighter oversight and key meaningful reforms, not an effort to undermine the entire program, which is what this new fee will do. Another common thread in the comments of both of those callers is the underlying need for us to reform, and fix our system of permanent immigration on the employment-based side.

The reality is that we have this system that's just beset by bureaucracy and delays, and caps on top of caps, which is why it can take many, many years, especially for people from India, to be able to obtain a green card. Even if they qualify on paper, they have to wait for their number to be called, some studies have indicated that depending on the category for an individual from India, that the wait can be as long as 150 years, which is obviously not realistic.

Many of those individuals are forced to try to cobble things together by using programs like the H-1B visa program to continue furthering their career, while they wait for their case to wend its way through a very complicated system of legal immigration, and that's just not sustainable. Some of the issues that we experience on the H-1B visa side are due to the problems on the permanent side which need to be fixed.

Brian Lehrer: Here's another stat, though, as you talk about the long waiting times that people from India, applicants from India have, to the point of the second caller who said that there are so many applicants from India that it locks out people who might be valuable from other countries. New York Times article says, 72% of the 400,000 H-1Bs granted last year went to applicants from India.

Do you think that's a problem or non-problem? Of course, India is the most populous, or second most populous country in the world, so even by normal distribution, it would be a lot, but not 72%, so is that a problem? Is that a non-problem? What do you make of 72% of the H-1B visa grantees coming from that one country?

Jorge Loweree: Right, so a couple of things. I think it's a reflection of the way that India itself has invested in education, and the way that individuals are raised through their educational system. From a very young age, that they have a lot of qualifying individuals for a visa category like this, more so than many other countries around the world, one.

Secondly, the way that individuals are ultimately chosen is by lottery. There's a randomized element of it, which means that we don't control, essentially. No one has specific control over who gets a visa or not. People may be able to improve their relative chances, but that's it. The government selects individuals via lottery.

Brian Lehrer: Let's go to another caller, Rebecca in Brooklyn. You're on WNYC. Hi, Rebecca.

Rebecca: Hi, Brian. Thank you so much for taking my call. I'm calling in, I'm an employment lawyer in-house for a tech company, and what I think that one thing to focus on, is this was part of a Friday news dump. It was written vaguely. It was written to scare people. People on H-1Bs and visas over the weekend were afraid to leave the country, and I think the cruelty is the point here.

I think it's to scare people from trying to get visas, and coming into the United States. It was several days after the fact that they clarified that it was just new applications for H-1Bs. I mean, as an employment lawyer for a company, we had to work all weekend to make sure that our employees weren't freaking out that they wouldn't be able to come back into the country without paying $100,000 fee.

I honestly think that Trump's buddies are going to end up having to pay millions of dollars because of this, and so I honestly think that it's going to be declared unlawful, but that's going to not make the news. The news is that he's charged-- He has this, it's not an executive order, whatever proclamation, and he's going to look like a big tough guy.

It's going to not be enforced, but it's just going to scare people from coming into this country, or trying to get a visa, and another way to just have immigrants not come to this country, and what's going to happen, is people are going to go and innovate somewhere else, and it's just more and more of this shortsighted thinking.

Brian Lehrer: For you as a lawyer, I read that some companies are sending memos to employees who are in the process of receiving an H-1B, or EB-1 visa, telling them to remain in the United States. Is that necessary if you're already a recipient, or even approved that you might be charged, or your company might be charged $100,000 to come back in?

Rebecca: To be honest, it is so unclear the way that they are choosing to enforce these things, that I think it's best to be conservative when you're trying to apply these proclamations.

Brian Lehrer: Rebecca, thank you for your call, very informative, and we have time for one more call, and I think David in Boston might be in just that circumstance we were discussing. David, you're on WNYC. Hello.

David: Hi, Brian, thank you so much for taking the call.

Brian Lehrer: What's your story?

David: I just had a quick question about a more personal situation I'm dealing with. I know thousands of other people in this country are dealing with currently. This is specifically with the news that came out recently that's primarily written as to affect the new applications, and obviously, there's been some clarification about old applications, but I'm right in this in between, where I just had my H-1B approved this past month, and this is a long time coming, something that I've been worried about and concerned about for years, but finally the approval has come through, so now I'm in this position, where I'm not quite sure with the news has come out, and the clarification that come out how this affects me and everyone else who has been approved for the H-1B, and whether this impacts the travel that was supposed to take to go home in December to actually receive that visa stamp.

I was curious if there's any discourse around that, and maybe any clarifications for people that may be more privy to this information that could provide some more insight as to how this affects not only the visa itself, but also any travel plans that people may have forthcoming.

Brian Lehrer: Yes, and we heard from the previous caller who's an immigration lawyer, for a company that employs people with H-1B visas, that it's uncertain what would happen. Jorge, can you clarify it anymore, and tell David whether he can go home for Christmas and come back?

Jorge Loweree: I'm unfortunately not able to provide legal advice in this sort of setting, but if-- You're welcome to put us in contact offline, and I may be able to connect David to somebody that can help, but this is the-- Both of these callers are speaking to a key aspect of how this has all happened, which is the chaos, the confusion, the misinformation that has come from this administration, from the very top of this administration, including the President himself, including Mr. Lutnick.

To give you an example of some of the things that we're talking about, we're 10 days out and we still don't exactly know how they will collect this fee, one. Two, we don't have clarity as to whom the fee will ultimately apply. One of the things that David is speaking to right now, is this tension in some of the information that we've received, and if we have time for me to give you a quick example.

Brian Lehrer: Please.

Jorge Loweree: There are three different agencies that are involved in this-- Management of this process. One is Customs and Border Protection, the other one is US Citizenship and Immigration Services, the other one is the Department of State. That alone is terribly complicated, but the information that we've received from them, the guidance that we've received from them is conflicting.

CBP, Customs and Border Protection has put out guidance indicating that the $100,000 fee will apply to only new H-1B petitions filed after the deadline on behalf of non-citizens who are outside of the United States, but a memo issued by US Citizenship and Immigration Services, and similar guidance issued by the Department of State, does not limit the requirement to individuals who are abroad, so who's actually affected, and who knows the answer to that question?

Brian Lehrer: A contradiction within the releases from the administration. David will take your contact information off the air, if you like, and give you Jorge's, so you can get in touch as he offered. I'm going to extend this and take one more call, because we've been talking about a lot of highly educated tech workers coming for the major tech companies primarily, but I think Carol in Queens is calling with an example of something very, very different. Carol, you're on WNYC. Hello.

Carol: Hi. Thank you for taking my call. I'm concerned about how this will impact health care. I worked for 10 years as an occupational therapy assistant at a preschool for children with special needs. Over 10 years there was-- No, I take it back, there were two employees as physical therapists who were native born American citizens. All the other staff, and it must have been a total of seven or eight people, all were immigrants, and they all came on visas, specifically, to work in this area of health care. How is our health care going to be impacted by this?

Brian Lehrer: Jorge, how will health care be impacted by this? That's a big growth industry in the New York and the US economy, is health care workers as the population ages, et cetera, and for a long time, people, I think, have been coming here as health care workers to fill shortages.

Jorge Loweree: That's exactly right, so we don't yet know. What about-- This is a key question. What about startups? What about small businesses? What about employers and sectors such as hospitals, as Carolyn just described? What about our public school systems? There are many people outside of tech, many businesses, many institutions outside of tech that rely on this visa category, and that they cannot afford this fee, that they could potentially be decimated if they are impacted by it.

Like I said earlier, we don't have absolute clarity as to the world of individuals, the world of entities that will be impacted by this change, but if it does apply to hospitals, if it does apply to schools, that is enormously consequential to each of those two sectors.

Brian Lehrer: Jorge Loweree, Managing Director of Programs and Strategy at the American Immigration Council, thank you very much for talking about the H-1B and the EB visas with us, and the confusion coming from the Trump administration. Thank you very much.

Jorge Loweree: Thank you.

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