H-1B visa

The H-1B is a non-immigrant visa category provided for in the Immigration & Nationality Act, section 101(a)(15)(H) that allows American companies and universities to temporarily employ foreign workers who have the equivalent to a US Bachelor's Degree. H-1B employees are employed temporarily in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation". A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts may be considered to be specialty occupations.

The actual size of the H-1B program is diffcult to gauge due to excemptions from the 85,000 quota limits. 130,497 new H-1B visas were approved in FY 2004 and 116,927 in FY 2005.

The H-1B visa category is controversial[2]. Advocates say the program (and similar ones operated by other technologically-advanced countries) helps the host country maintain its technological as well as economic superiority by providing a steady flow of highly skilled professionals who may be in short supply domestically. It also provides an incentive for companies not to move their operations abroad.

The H-1B category has been criticized for displacing substantial numbers of experienced American citizen technical professionals or lowering wages enough to encourage them to abandon volatile careers in targeted fields such as computer technology. Although there are differing views on whether or not the H-1B visa is good for the US economy, economist Milton Friedman has called the program a form of subsidy.^[1] It was also blamed for encouraging brain drain in the source countries.

H-1B workers are legally required to pay the same taxes as any other US resident, including Social Security and Medicare.^[2] Any person who spends more than 183 days in the US in a calendar year is a tax resident and is required to pay US taxes on their worldwide income. From the IRS perspective, it doesn't matter if that income is paid in the US or elsewhere. If an H-1B worker is given a living allowance, it is treated the same by the IRS as any other US resident. In some cases, H-1B workers pay higher taxes than a US citizen because they are not entitled to certain deductions (eg. head of household deduction amongst many others). Some H-1B workers are not eligible to receive any Social Security or Medicare benefits unless they are able to adjust status to that of permanent resident.^[3] However, if their country of citizenship has a tax agreement with the United States, they are able to collect the Social Security they've earned even if they don't gain permanent residency there. Such agreements are negotiated between the United States and other countries, typically those which have comparable standards of living and public retirement systems

In most states, H-1B workers and their dependents do not qualify for in-state tuition regardless of the amount of time spent in the US. In the past few years, a few states such as California and Texas have extended in-state tuition to H-1B workers and dependents. Typically the decision to offer in-state tuition to H-1B and H4 residents is taken as a result of an adverse state court decision that uses the precedent established for G-4 visas in the Supreme Court decision in TOLL v. MORENO, 441 U.S. 458 (1979).

According to the USCIS, "H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer."^[4] Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made.

As the rules are written, there is no requirement that an American be sought to fill a position, nor given preference in layoffs unless the company is "H-1B dependent", i.e. 15 percent or more of its global workforce consists of H-1Bs earning less than $60,000 per year, exempting those who hold masters degrees. Only about one percent of H-1b employers are deemed "H-1b dependent," and even then the employer is only required to "attest" that he was not able to find an American.

In theory, the maximum duration of the H-1B visa is six years (ten years for exceptional Defense Department project-related work). H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa.

There are generally two exceptions to the 6 year duration of the H-1B visa:

• If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to his 5th year anniversary of having the H-1B visa, he is entitled to renew his H-1B visa in 1 year increments until a decision has been rendered on his application for permanent residence.

• If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to his priority date not being current, he may be entitled to a 3 year extension of his H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000.^[5]

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India and China) to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments to continue to be in legal status while their green card application is in process.

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and nonprofits. In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota. During the early years of this quota in the early 1990s, this quota was rarely actually reached. By the mid-1990s, however, the quota tended to be filled each year on a first come, first served basis, resulting in new H-1Bs often being denied or delayed because the annual quota was already filled. In 1998 the quota was increased first to 115,000 and then, in 2000, to 195,000 visas per year. This increase in the quota seemed to play a role in oversaturating an already softening high-tech job market. During the years the quota was 195,000, it was never reached, and the availability of high-tech jobs in the USA plummeted as there was just too much competition for positions.

In FY 2004, the quota reverted to 90,000 when the temporary increase passed by Congress in 1999 expired. Since then, the quota is again filling up rapidly every year, making H-1Bs again increasingly hard to get. More recently, the basic quota was left at 65,000 but with an additional 20,000 visas possible for foreign workers with US advanced degrees. Of the 65,000 total, 6,800 are initially reserved for citizens of Chile and Singapore under free trade agreements with those countries; however, if these reserved visas are not used under the agreements, they go back to the general pool. Outside of the 65,000 quota, another 10,500 visas annually are available to Australian citizens under a similar but more flexible program, the E-3 visa program.

In 2006, the entire quota of visas for the year beginning October 1, 2006 was exhausted within a span of less than 2 months on May 26^[6], and the additional 20,000 Advanced Degree H-1B visas were exhausted on July 26th.

In its annual report on H-1B visas released in November 2006, USCIS stated that it approved 131,000 H-1B visas in FY 2004 and 117,000 in FY 2005. For both years the total number of visas exempt from the quota is about 20,000 suggesting that USCIS is approving substantially more visas than authorized under the law.

Recent H1b legislation requires certain employers, called H1B dependent employers to advertise positions in the USA before petitioning to employ H1B workers for those positions.

For firms of 50 empolyers, an H1B dependent employer is defined as having more than 15% of their employees in H1B status. Smaller firms are allowed to have a higher percentage of H1B employees before becoming 'dependent'.

In theory the H-1B program should be relatively noncontroversial. However, the implementation has caused a number of criticisms.

The biggest criticism of the H-1B program has been over its role in replacing U.S. workers. The first documented cases occurred in 1994 when AIG (Livington NJ) and SeaLand (Elizabeth NJ), took advantage of a loophole in the law to replace their U.S. programming staffs with H-1B workers. These companies used contract job shops to supply the H-1B replacements. The companies could claim they did not apply for H-1B visas and the job shops could claim they had not fired any U.S. workers. Thus, the employer could openly and legally replace their U.S. workforce with H-1B workers.

The American Competitiveness Act of 1998 that temporarily expanded the H-1B program contained a provision to close this loophole in the version that passed the House Judiciary Committee. However, the House leadership had it removed before the bill came to a vote.

Another criticism of the H-1B program is its vague eligibility requirements, however specific guidelines upheld by a body of case law define the requirements. While frequently described as a program for "highly skilled" workers, the H-1B nonimmigrant visa category specifically applies to specialty occupations. However, it might be argued that any job that requires a minimum of a bachelor's degree, is "highly skilled".

Specialty occupations have been defined as positions that require theoretical or technical expertise in a specialized field and have generally been interpreted as being those that normally require the attainment of a Bachelor's degree. ^[7] Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes fashion models.

Wage depression is a complaint critics have about the H-1B program: some studies have found that H-1B workers are paid significantly less than U.S. workers.^[8] It is claimed that the H-1B program is primarily used as a source of cheap labor. However the sources of these studies are normally conducted and reported by special interest groups that oppose the H-1B program. No definitive governmental study, either by the GAO or the Congressional Research Agency has proven these statistics to be true.

The Labor Condition Application (LCA) included in the H-1B petition is supposed to ensure that H-1B workers are paid the prevailing wage in the labor market, or the employer's actual average wage, whichever is higher, but some evidence exists that some employers do not abide by these provisions and therefore avoid paying the actual prevailing wage. However, studies show that the majority of employers do pay prevailing wages and the law provides stiff penalties for abusers. ^{[citation needed]}

DOL has split the prevailing wage into four levels, with Level One representing about the 17th percentile of wage average Americans earn - and about 80% of LCA are filed at this 17th percentile level. This four level prevailing wage can be obtained the DOL website, ^[9] and is generally far lower than average wages.

Historically, H-1B holders have sometimes been described as indentured servants, and while the comparison is not entirely accurate, it had some validity prior to the passage of American Competitiveness in the Twenty-First Century Act of 2000. Although immigration generally requires short & long-term visitors to disavow any ambition to seek the green card (permanent residency), H-1B visa holders are an important exception, in that the H-1B is legally acknowledged as a possible step towards a green card under what is called the doctrine of dual intent.

Some H-1B Visa holders work as offshore agents. Sending and coordinating work back in their homeland (mostly India). These agents often work at large corporations that require someone in-house to answer questions and deal with the financial aspects here in the US. Corporations have been using this technique for a few years, with varied success. Software off shoring was very popular for a few years and still remains an attractive alternative for software development. The popularity has fallen off since the results have not always proven worthwhile. The major problem is that software specifications are usually not written to such detail as to someone outside the organization can follow. The resulting software usually falls short of satisfying the specification(s). The result can be even more costly in time and money than having the software developed on-site.

H-1B visa holders may be sponsored for their green cards by their employers through an Application for Alien Labor Certification, filed with the US Department of Labor. In the past, the sponsorship process has taken several years, and for much of that time the H-1B visa holder was unable to change jobs without losing their place in line for the green card. This created an element of enforced loyalty to an employer by an H-1B visa holder. Critics alleged that employers benefit from this enforced loyalty because it reduced the risk that the H-1B employee might leave the job and go work for a competitor and that it put citizen workers at a disadvantage in the job market, since the employer has less assurance that the citizen will stay at his job for an extended period of time, especially if the work conditions are tough, wages are lesser or the work is extensive and deadlined. It has been argued that this makes the H-1B program extremely attractive to employers and that labor legislation in this regard has been influenced by corporations seeking and benefitting from such advantages.

Employers cannot typically sue employees if they leave their employment, regardless of whether the employee is an H-1B holder, a permanent resident or a US citizen. Although any employer can make this threat, the case history of employers who have attempted to sue or otherwise claim money from H-1B employees is limited. In 2001, San Mateo County Superior Court Judge Phrasel Shelton ruled in an H-1B employee's favor on the unfair competition statute and ordered the employer to drop restrictive language in its employee contracts. The H-1B employee in the case was awarded over $200,000 in fees and damages.^[10] In 2002 the employer appealed the decision and lost.^[11] In addition, Department of Labor's H-1B regulations issued in 2001 prohibit employers from making an H-1B employee pay a penalty for quitting prior to an agreed upon date.

In 2002, The U.S. government began an investigation into Sun Microsystems' hiring practices after an ex-employee, Guy Santiglia, filed complaints with the US Department of Justice and US Department of Labor alleging that the Santa Clara firm discriminates against American citizens in favor of foreign workers on H1-B visas. Guy Santiglia accused the company of bias against U.S. citizens when it laid off 3,900 workers in late 2001 and at the same time applying for thousands of visas in 2001. In 2002, about 5 percent of Sun's 39,000 employees had temporary work visas, she said. ^[12]

Current US law states that employers who hire foreign workers must prove that there are no domestic workers who could fill their positions. H-1B Visa critics have argued that this is an entirely arbitrary and subjective measuring stick that an employer can change arbitrarily and retroactively to disqualify any US applicants over H1-B applicants after the fact. For instance if a company wants to hire a particular H1-B applicant over a US citizen for reason unrelated to skills, all that is necessarily is to make up an arbitrary excuse retroactively when filing the H1-B petition, and with complete disregard to whether the US applicant is really qualified.

For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker must meet or exceed the prevailing wage in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing US citizen workers. Under the regulations, LCAs are a matter of public record. Corporations hiring H-1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.

At a high level, the LCA process appears to offer protection to both U.S. and H-1B workers. According to the US General Accounting Office the details of law render these protections ineffective.^[13] The employer ultimately, not the Department of Labor, however, determines what source it will use to determine the prevailing wage for an offered position, and it may choose among a variety of competing surveys, including its own wage surveys, provided that such surveys follow certain defined rules and regulations.

The law specifically restricts the Department of Labor's approval process of LCAs to checking for "completeness and obvious inaccuracies".^[14]. In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21)and the US Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H-1B's as indentured servants during the green card process. With PERM, labor certification processing times have been reduced to less than 90 days.

Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, if the position to which they are moving is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times will improve, but the person will also lose their favorable priority date. In those cases, employers' incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.

However, many people are ineligible to file I-485 at the current time due to the wide-spread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.

On May 25, 2006 the U.S. Senate passed immigration bill 2611 which contained several increases in the number of H1-B visas, including: 1) raising the base quota from 65,000 to 115,000, 2) Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it, 3) Adding 6,800 visas for trade agreements separate from the base quota, 4) Adding 20,000 visas for those with foreign graduate degrees, 5) Raising from 20,000 to unlimited the number of visas for those with U.S. graduate degrees, and 6) Making visas to non-profit organizations exempt from the quota. [3] [4] [5] However, as the House refused to consider the measure, it died in conference and no H-1B increase was approved in time for the elections.

In addition to H-1B visas, there are a variety of other visa categories which allow foreign workers to come into the US to work for some period of time.

L-1 visas are issued to foreign employees of a corporation. Under recent rules, the foreign worker must have worked for the corporation for at least one year in the preceding three years prior to getting the visa. An L-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders. For Canadian residents, a special L visa category is available.

TN-1 visas are part of the NAFTA treaty, and are issued to Canadian and Mexican citizens.^[15] Formerly, they were also issued to third country citizens who had obtained permanent residency in Canada. This procedure is called "touching base". TN visas are only available to workers who fall into one of a pre-set list of occupations determined by the NAFTA treaty. There are specific eligibility requirements for the TN Visa.

E-3 visas are issued to citizens of Australia under the Australia free-trade treaty.

H-1B1 visas are issued to residents of Chile and Singapore under the amended NAFTA treaty.

One recent trend in work visas is that various countries attempt to get special preference for their nationals as part of treaty negotiations. Another trend is for changes in immigration law to be embedded in large Authorization or Omnibus bills to avoid the controversy that might accompany a separate vote.

H-2B: The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status

• Green Card for medical doctors and physicians.

  Pre-requisite: National Interest Waiver.

  Alternatively, a Medical Doctor or Physican may enter the US for a temporary period through a Visa.

• Green Cards for Nurses and Physical Therapists.
• Employment Visa for Professors and Researchers.

Dependents of H-1B visa holders

H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under H4 Visa category as dependents. A H4 Visa holder may remain in the US as long as the H-1B visa holder remains in legal status. A H4 visa holder is not eligible to work in the US and is not eligible for a Social Security number (SSN). A H4 Visa holder may attend school, obtain a driver's license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver's license in cases where driver's licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required.

References

United States Citizenship and Immigration Service, "Characteristics of Specialty Occupation Workers (H-1B)", for FY 2004 and FY 2005, November 2006.

1. ^ Donnelly, Paul (July 22, 2002). "H-1B Is Just Another Gov't. Subsidy". Computerworld. {{cite news}}: Unknown parameter |Currently the number of H-1B visas issued per year is limited to 65,000 with an additional 20,000 for those with U.S. graduate degrees and no limit for universities and non-profit and government research laboratories. Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B stay beyond the 6-year maximum period, when: 365 days or more have passed since the filing of any application for Labor Certification, that is required or used by the alien to obtain status as an employment-based immigrant, or 365 days or more have passed since the filing of an employment based immigrant petition. H-1B visas are employer-specific, and aliens may only work for the petitioning U.S. Employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. Employer, but must have a Form I-129 petition approved by each employer. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status. url= ignored (help)
2. ^ IRS Publication 519 (2004), U.S. Tax Guide for Aliens
3. ^ Alien Liability for Social Security and Medicare Taxes
4. ^ H-1B Frequently Asked Questions
5. ^ American Competitiveness in the Twenty-First Century Act of 2000
6. ^ [1]
7. ^ United Department of Labor Office of Inspector General, The Department of Labor's Foreign Labor Certification Programs: The System Is Broken and Needs To Be Fixed, May 22, 1996, p. 20
8. ^ The Bottom of the Pay Scale: Wages for H-1B Computer Programmers John M. Miano
9. ^ DOL Foreign Labor Certification Online Wage Library
10. ^ 'Body shop' must pay fees in H-1B lawsuit
11. ^ Appeal denied in H-1B visa case
12. ^ Sun Accused of Worker Discrimination, San Francisco chronicle, June 25,2002
13. ^ United States General Accounting Office, H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect Workers
14. ^ 8 USC 1182 (n)
15. ^ Mexican and Canadian NAFTA Professional Worker

See also

• Free trade debate
• Labor shortage
• SKIL Bill
• Immigration voice

External links for H-1B information

• H-1B FAQ from USCIS site
• H-1B FAQ and list of useful H-1B memos
• H-1B Information Center - FAQs, Articles, and Glossary from The Law Offices of Stuart J. Reich
• H-1B FAQ and Details by Immigration Attorney Ashwin Sharma, Esq.
• H-1B updates and most recent developments
• 2005 H1B Visa Reports including top sponsors, salary statistics, job distribution and immigration attorney
• US Department of Labor Foreign Labor Database
• US Department of State information on H-1B visa
• US GAO Report on H-1B Problems, PDF format
• H-1B worker wins case
• H-1B information for doctors
• General H1B and Cap Info
• ImmiTips: H-1B information for all
• H-1B Visa Status Tracker: An H-1B tracker that lets users share and discuss the details of their H-1B applications, reducing guesswork and making it easier to estimate processing times.
• H-1B Visa Explained Easy to understand summary of the H-1B Visa
• H1B and NRI Matrimonial portal Indian Matrimonial portal for H1B and NRI professionals
• Keshab Raj Seadie, P.C. H-1B Visa Information U.S. Immigration Attorney Specializing in H-1B Visa
• Process of obtaining Green Card after approval of H1-B Visa

Anti-H-1B websites

• Site devoted to the threat of Software sabotage
• One Computer Scientist's perspective
• ZaZona
• The Bottom of the Pay Scale: Wages for H-1B Computer Programmers by John M. Miano. An analysis comparing wages on Labor Condition Applications for H-1B workers to actual U.S. Wages.
• Rescue American Jobs
• H-1B Info
• Norman Matloff
• H1B Visa Scams
• An American Scam: How special interests undermine national security with endless 'techie' gluts, by Gene A. Nelson, Ph.D.
• Temp Employment Visa Legal Discussion
• Debunking the Myth of a Desperate Software Labor Shortage by Dr. Norman Matloff, Department of Computer Science University of California at Davis. Testimony Dr. Matloff presented to the U.S. House Judiciary Committee Subcommittee on Immigration in 1998. Updated through 2002.
• Gone With The World - Author claims to have witnessed H-1B abuses firsthand
• Programmers Guild See website for press releases and appearances on Lou Dobbs
• Viewpoint on the flaws of the H-1B visa program and how to solve the problem
• Visa Compromises - Suggested compromises to make the visa programs more acceptable to those displaced.
• Center for Immigration Studies
• No More H1B Visa
• H1B Visa Info

Advocacy efforts

• www.ImmigrationVoice.org Issues facing H-1B holders during the transition to Legal Permanent Residency
• "America's New Immigrant Entrepreneurs" - A Duke University Study