H-1B visa

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The H-1B is a controversial nonimmigrant 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.

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.

The H-1B visa category is controversial. 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 short in 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. Of course, there are those who adamantly disagree with this point of view.

The H-1B visa is currently under reform, and if the Immigration Reform Act of 2006 passes, the cap on the number of issued visas will be increased from the annual limit of 65,000 visas to an annual limit of 115,000. The bill also has a clause that, if passed, will may increase the cap up to 20% each year after 3 years of the bills enactment. The new bill also has provisions to broaden cap exemptions to include non-profit institutions, degree holders from US universities, and more.

1 Taxation status of H-1B workers
2 Payment of In-state tuition
3 H-1B employment
4 US policy on maximum duration
5 H-1B and Legal Immigration
6 Quotas and changes in quotas
7 Controversies and criticisms
8 Worker Protection and Law Enforcement
9 Recent changes to US law
10 Similar Programs
11 Dependents of H-1B visa holders
12 References
13 See also
14 External links for H-1B information
- 14.1 Anti-H-1B websites
15 Advocacy efforts

[edit] Taxation status of H-1B workers

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 totalization agreements 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

[edit] Payment of In-state tuition

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).

[edit] H-1B employment

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. The employer is only required to "attest" that he was not able to find an American.

[edit] US policy on maximum duration

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]

[edit] H-1B and Legal Immigration

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.

[edit] Quotas and changes in quotas

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.

[edit] Controversies and criticisms

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 negative 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. However, they don't dispute them either.

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 employer do pay prevailing wage and the law provides stiff penalties for abusers. [citation needed]

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 the USA generally requires short- and 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 may legally and openly be used as a stepping stone to the green card under what is called the doctrine of dual intent.

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 on the part of an H-1B visa holder. Critics alleged that employers liked this enforced loyalty because it reduced the risk of the H-1B employee leaving to go work for a competitor, and put American citizens at a disadvantage in the job market, because the employer had less assurance that the U.S. citizen will stay at their job for an extended period of time.

Employers cannot typically sue H-1B holders 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.^[9] In 2002 the employer appealed the decision and lost.^[10] 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.

[edit] Worker Protection and Law Enforcement

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.^[11] 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".^[12]. In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted.

[edit] Recent changes to US law

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 senate passed immigration bill 2611 which contained several increases in the number of H1-B visas. - Raises the base quota from 65,000 to 115,000. - Automatically increases the base quota by 20% whenever it is reached with no provision for lowering it. - Adds 6,800 visas for trade agreements separate from the base quota. - Adds 20,000 visas for those with foreign graduate degrees. - Raises from 20,000 to unlimited the number of visas for those with U.S. graduate degrees. - Makes visas to non-profit organizations exempt from the quota. [2] [3] [4]

[edit] Similar Programs

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.^[13] 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.

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.

[edit] 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 H-4B Visa category. A H-4B Visa holder may remain in the US as long as the H-1B visa holder remains in legal status. A H-4B visa holder is not eligible to work in the US and is not eligible for a Social Security number (SSN). A H-4B 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.