No, Governor DeSantis, H-1Bs aren’t going to cashiers

Though sometimes they do go to soccer coaches

There are valid critiques of the H-1B visa system; we have made many of them ourselves. A call for reforming it therefore does not need to rely on myths and misdirection.

Earlier this month, Florida Governor Ron DeSantis chose to spread the viral claim that H-1B visas are being used by 7-Eleven to employ cashiers. The claim is based on a misreading of data and is entirely wrong.

But it’s worth looking at exactly how the governor fell for such a nonsensical claim, both because he isn’t the only one to have made this error and, more importantly, because his mistaken critique obscures a deeper and very real flaw in the design of the H-1B visa system.

Here’s what happened. The claim that fooled the governor originated from a website that scrapes H-1B application data from the Department of Labor (DOL), known as Labor Condition Applications (LCAs). People who look through this website can see that cashiers, baristas, and line cooks applying for H-1Bs have their LCAs “certified,” which sounds the same as an application getting approved. While this makes for an easy sound bite, it’s also deeply misleading.

When DOL certifies an LCA, the employer then files the actual H-1B petition with the Department of Homeland Security (DHS) — the agency that is actually tasked with deciding which jobs actually qualify for an H-1B. And DHS approvals tell a very different story: there are no H-1B visas going to 7-Eleven cashiers.

For DHS to approve an H-1B, the job opening needs to be considered a “specialty occupation,” which is defined as a job with highly specialized duties where a bachelor’s degree is normally required. DHS’s annual report on H-1Bs makes it clear that none of these low-wage service jobs are being awarded H-1B visas. This is because there is no plausible scenario where 7-Eleven could credibly argue that one of their cashiers qualifies as a specialty occupation.

When comparing recent data showing the LCAs that DOL certified with the actual H-1B applications that were approved by DHS, the baristas and cooks whose LCAs were certified in 2023 were ultimately not approved for H-1Bs in Fiscal Years 2023–2024. (This data was originally obtained by Bloomberg, and please see our Github page for a breakdown of the applications that were approved for H-1Bs.) Had 7-Eleven applied for cashiers that year, their applications would have met the same fate.

That being said, it’s also true that some low- or middle-wage job openings can be construed as meeting the H-1B program’s specialty occupation requirement. While it would be absurd for an employer to require a bachelor’s degree for somebody to work as a barista, it’s a little less strange to imagine a job opening for a soccer coach in Seattle for which the starting pay is $50,000 and a bachelor’s degree in sports science is required. Or an employer offering $32,000 for a graphic design position in Georgia and requiring a related degree. In fact you don’t have to imagine them at all, as these are examples of H-1B petitions that DHS has indeed approved.

There’s another problem with the specialty occupation requirement in addition to allowing certain middle- and low-skilled jobs to be granted H-1Bs. It also creates a rigidity that makes it harder for high-skilled professionals — the exact workers that H-1Bs are supposed to help employ — to work in roles that may not seem directly related to their area of study. To decide whether a position is a specialty occupation, DHS must determine if the job generally requires at least a bachelor’s degree in a directly related field. To inform their decisions, DHS frequently looks to DOL’s Occupational Outlook Handbook as a reference.

This process of determining whether a degree is directly related to a given occupation can cause complications for employers looking to fill roles that require interdisciplinary knowledge. For example, an employer doing work in robotics may prefer to hire a software developer with an advanced degree in physics instead of computer science. In such a scenario, DHS may significantly delay or deny this petition because the DOL handbook states that a computer science background is needed for this type of role.

The H-1B visa has never been used as a recruitment tool for 7-Eleven to bring in cashiers, but that doesn’t mean that the program is currently a reliable filter for top talent. The reliance on determining eligibility based on whether the role is a specialty occupation often fails to select applicants for the most heavily sought-after skills. Rather than attempting to police whether a job is specialized or not, H-1Bs should be selected based on an applicant’s salary or their expected lifetime earnings.

Read our proposals for reform here.