30 Out of 40 Elite Science Students Are Children of H-1B Visa Holders. President Trump Is Sharply Cutting H-1B Visas

There is no doubt that President Trump’s “Buy American, Hire American” executive order is choking an unusually rich pipeline for talent in the American economy. The order seeks to reduce H-1B visa holders and spur more hiring of Americans. The visa principally serves high-tech occupations—computer programmers being a prime example.

Under our immigration law, an American employer cannot hire an H-1B visa holder without advertising the job in the U.S. and finding no suitable candidates. Also, the employer must pay a prevailing wage for the occupation and labor market—often above $100,000. It is not cheap labor.

Some examples of former H-1B visa holders are Elon Musk, founder of Tesla and SpaceX, and Jyoti Bansal, founder of AppDynamics, which in January 2017 was acquired by Cisco for $3.7 billion.

Stuart Anderson, writing for Forbes recently, observed: “It turns out one of the greatest benefits to America of H-1B visa holders may be their children. When I interviewed finalists of the 2016 Intel Science Talent Search, the top science competition for U.S. high school students, I found that 75% – 30 out of 40 – of the finalists had parents who had worked in America on H-1B visas.”

My forthcoming article in an New York University Journal of Law & Liberty summarizes the legal situation:

Whites Versus Indians: Is the Hire American Preference in Executive Order 13,788 Constitutional? 

President Trump’s Executive Order 13,788 states a “Hire American” policy, declaring that the executive branch will “rigorously” enforce U.S. immigration laws. The order, aimed at the H-1B visa program, ostensibly seeks to root out fraud and abuse. But beneath its veneer of apparently legitimate policy justifications, the Executive Order undermines Congress’ statutory plan to allow issuance of 65,000 annual H-1B visas. In place of these numerical limits, the Executive Order explicitly seeks to ensure that H-1B visas are awarded to “the most-skilled or highest-paid petition beneficiaries”—in other words, to severely choke the supply of skilled foreign workers by rewriting the express terms of legislation.  Consciously inspired by the “You’re Fired” 60 Minutes segment, the “Hire American” order executes President Trump’s racially-motivated intent to blame Indian IT workers for the loss of Americans’ jobs. Using statistical data, I show that non-whites, especially Asian Indians, comprise the majority of the H-1B labor market; using recent Donald Trump tweets and interviews, I show that the president consciously favors whites over other races; and using recent federal court cases involving President Trump’s travel ban, transgender ban, and DACA-termination decision, I show that his actions have created extraordinary precedents which apply heightened judicial scrutiny of administrative actions. Indian H-1B visa-holders should challenge Executive Order 13,788 as a Due Process violation of their Fifth Amendment rights. Courts have ample grounds to apply heightened scrutiny to the “Hire American” order and enjoin its enforcement.