Reform the H-1B Program and America's immigration system — now

Harried headlines about a “Musk-MAGA civil war” over H-1B visas represent the latest effort to divide Republicans and derail efforts to reform immigration policies that contributed directly to President-elect Trump’s 312-226 electoral college rout of Vice President Harris. But behind the pseudo drama is a clear opportunity to reform the H-1B visa program to better effectuate its policy goals.

H-1B visas were first established as part of the Immigration Act of 1990. The law established an annual cap on the number of “highly specialized” visas awarded to those of “distinguished merit and ability." To protect American workers from being displaced by lower wage foreign workers, employers seeking H-1B visas are required to complete a “labor condition application” establishing work, wage and benefit parity vis a vis similarly-situated U.S. workers.

According to multiple sources, including the Economic Policy Institute, U.S.-based employers exploit the H-1B visa program to hire foreign workers who earn “significantly less” than their similarly-situated American counterparts. As chairman of the House Judiciary Committee from 2001-2006, I led consideration of several immigration and border reform measures, including H.R. 4437. During this time, H-1B visas were a flashpoint. While negotiating bilateral trade agreements with Chile, Singapore and Australia, those governments sought a minimum number of specialized visas to the United States.

To ensure against gaming, I drafted and supported legislation requiring these specialized visas to be deducted from the annual H-1B cap and conducted oversight of the H-1B program. When traveling overseas, I would always visit the immigration and visa processing officers of U.S. embassies or consulates.

At the U.S. consulate in Mumbai, one H-1B interview stood out when an applicant presented certifying documentation by a purportedly U.S.-based company printed on letterhead so fraudulent the ink smeared when the counselor officer ran his thumb over it. New technologies only heighten the risk of fraud.

Current law mandates approval of a H-1B labor condition application within seven days of its filing unless the secretary of Labor finds the application to be “incomplete or obviously inaccurate.” This invitation to fraud is equivalent to directing the secretary of State to issue passports to anyone unless their application materials are “obviously counterfeit.” Congress must strengthen statutory safeguards, extend the application review period, and conduct rigorous oversight to end fraud and abuse. The existing statute also contains a feckless penalty structure for U.S.-based companies found to be in violation of H-1B parity requirements. These civil penalties must be substantially expedited and graduated to ensure U.S. firms pay a steep and unacceptable price for abusing the program to replace U.S. workers with lower wage migrants.

Of crucial importance, H-1B reform must occur within the broader context of reorienting United States immigration policy to advance the economic and national security interests of the United States, not to perpetuate the narrow political interests of the Democratic Party. Finally, we must Make America Great Again in Math and Science by enacting legislation similar to the National Defense Education Act. Spurred by the launch of Sputnik, this 1958 act prioritized domestic excellence in math, science and engineering that secured for decades America’s now-slipping global technological dominance.

Elon Musk is clearly a person of “distinguished merit and ability" the H-1B visa program was enacted to bring to our shores. With his help, Congress must reform the H-1B program while structurally re-orienting the U.S. immigration system to enhance the interests of America and well-being of Americans.

F. James Sensenbrenner, Jr., served as a member of Congress from 1979-2021.

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