H-1B: Harmful by Design
It is explicitly legal to replace Americans with visa workers
By John Miano on May 20, 2025
There has been much discussion of H-1B visas on X recently because of President Trump’s seeming change of heart on the issue. When Donald Trump ran for president in 2016, he campaigned with Americans who had been replaced by H-1B workers and promised to fix the problem.
To some degree he did. For example, President Trump put a halt to the TVA replacing Americans with H-1B workers. Trump was the first president since H-1B’s creation where nothing got worse.
When it became apparent that President Trump was going to win in 2024, big money in the tech industry switched sides to join the winning team, and seems to have gained significant influence.
Sadly, much discussion about H-1B online, in the media, and even in academic publications is disconnected from reality. For example, it is “common knowledge” that employers must show they could not find Americans before hiring H-1B workers. But that is a myth and the opposite is true: It is explicitly legal to replace Americans with H-1B workers.
The starting point is the law. Going to 8 U.S.C. § 1182(n)(1)(F)(i):
(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application.
Yes, this superficially theoretically bans replacing Americans with H-1B workers. Notice the two limitations on that ban:
https://cis.org/Miano/H1B-Harmful-Design
