The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H), that allows U.S. employers to employ foreign workers in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years, after which the visa holder can reapply. Laws limit the number of H-1B visas that are issued each year. There exist congressionally mandated caps limiting the number of H-1B visas that can be issued each fiscal year, which is 65,000 visas, and an additional 20,000 set aside for those graduating with master’s degrees or higher from a U.S. college or university. An employer must sponsor individuals for the visa. USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019.[1] The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991.[2] There were 206,002 initial and continuing H-1B visas issued in 2022.[3]

The H-1B visa has its roots in the H-1 visa of the Immigration and Nationality Act of 1952. The Immigration Act of 1990 split the H-1 visa into the H-1A (for nurses) and H-1B. The law capped H-1B visas at 65,000 each fiscal year and required employers to submit Labor Condition Applications. Additional modifications to H-1B rules were made by legislation in 1998, 2000, in 2003 for Singapore and Chile, in the H-1B Visa Reform Act of 2004, 2008, and 2009. United States Citizenship and Immigration Services has modified the rules in the years since then.

H-1B visa structure edit

An H-1B visa allows an individual temporarily work in a specialty occupation in the United States.

Specialty occupation edit

The regulations define a specialty occupation as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor,[4] including but not limited to biotechnology, chemistry, computing, architecture, engineering, statistics, physical sciences, journalism, medicine, and health: doctor, dentists, nurses, physiotherapists, etc., economics, education, research, law, accounting, business specialties, technical writing, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum[5] (with the exception of fashion models, who must be "of distinguished merit and ability").[6] Likewise, the foreign worker must possess at least a bachelor's degree or equivalent and state licensure, if required to practice in that field. H-1B work authorization is strictly limited to employment by the sponsoring employer.

Employment edit

A person in H-1B status must continue to be employed by their employer in order to stay in H-1B status. If the person's employment ends for any reason, the person must leave the United States, unless the person applies for and is granted a change of status or finds another employer compatible with the H-1B status. Effective January 17, 2017, the United States Citizenship and Immigration Services allows a grace period of up to 60 days after employment termination to stay in the United States.[7][8]

Stay duration edit

The duration of stay for an H-1B visa holder is typically six years. The American Competitiveness in the 21st Century Act of 2000 created exceptions to maximize length of stay in certain circumstances:

  • If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year increments until a decision has been rendered on their application for permanent residence. This is backed up by the Immigration and Nationality Act 106(a).[9]
  • 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 their priority date not being current, they may be entitled to a three-year extension of their H-1B visa until their adjustment of status can finish. This exception originated in section 104a (AC21 104a).[9]
  • The maximum duration of the H-1B visa is ten years for exceptional United States Department of Defense project related work.

A time increment of less than three years has sometimes applied to citizens of specific countries. For example, during Melania Trump's time as a H-1B visa holder, she was limited to one year increments, which was the maximum time allowed then per H-1B visa for citizens of Slovenia. Melania Trump became a citizen in 2006.[10]

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 if they do not qualify for one of the exceptions noted above allowing for extensions beyond six years.[11] Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H-1B portability or transfer, provided the new employer sponsors another H-1B visa, which may or may not be subjected to the quota.

Annual cap and exemptions edit

The Immigration Act of 1990 established a limit of 65,000 foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year; the annual limit is often called a quota or a cap. The H-1B Visa Reform Act of 2004 added 20,000 additional H-1Bs to foreign nationals holding a master's or higher degree from U.S. universities. In addition, excluded from the ceiling are all H-1B non-immigrants who are employed (or have received an offer of employment) at any of the following:[12]

  • an institution of higher education
  • a nonprofit entity related or affiliated to an institution of higher education
  • a nonprofit research organization
  • a governmental research organization

Contractors working at, but not directly employed by, these institutions may be exempt from the annual quotas as well. However, employers must show that, first, the majority of the worker's duties will be performed at the qualifying institution, organization or entity and, second, the job duties directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution, organization, or entity.

The Chile–United States Free Trade Agreement and the Singapore–United States Free Trade Agreement created a separate quota of 1,400 H-1B1 visas for Chilean nationals and 5,400 H-1B1 visas for Singapore nationals. If these reserved visas are not used, however, then they added to the following fiscal year's H-1B annual quota.

Due to these exemptions and rollovers, the number of H-1B visas issued each year is often greater than 65,000, such as when 117,828 H-1B visas were issued in fiscal year 2010, 129,552 in fiscal year 2011, and 135,991 in fiscal year 2012.[13][14]

In some years, the cap was not reached. For example, in fiscal year 1996, the Immigration and Naturalization Service (now known as USCIS) announced on August 20, 1996, that a preliminary report indicated that the quota had been exceeded, and processing of H-1B applications was temporarily halted. However, when more accurate numbers became available on September 6, it became apparent the quota had not been reached after all, and processing resumed for the remainder of the fiscal year.[15]

The United States Citizenship and Immigration Services starts accepting applications on the first business day of April for visas that count against the fiscal year starting in October. For instance, H-1B visa applications that count against the fiscal year 2013 cap were submitted starting Monday, 2012 April 2. USCIS accepts H-1B visa applications no more than 6 months in advance of the requested start date.[16] Beneficiaries not subject to the annual cap are those who currently hold cap-subject H-1B status or have held cap-subject H-1B status at some point in the past six years.

Electronic registration process and lottery edit

In 2020, USCIS instituted a new electronic registration process[17] where employers no longer need to send a fully completed H-1B filing package. Instead, during March (exact dates are announced by USCIS every year) of every year, employers can submit an electronic registration for a $10 non-refundable fee through a new USCIS H-1B Electronic Registration system.[18] These employers can begin creating a USCIS registrant account starting in February of a year(USCIS usually gives the dates).[19] USCIS requires only basic information to register for the H-1B lottery, which is unlike the actual H-1B petition in April.[20]

The annual H-1B season officially starts in March of each year, when petitioners are allowed to register electronically for their applicant. If more registrations are submitted there will be a random selection also called as H-1B lottery.[19] The lottery will determine who gets an option to file H-1B visa petition with USCIS.

As of the most recent H1B season, on March 31, 2023 USCIS notifies the selected registrants. During the FY 2024 H-1B lottery, there were 758,994 eligible electronic registrations and 110,791 people selected for an H-1B visa.[21]

Selected registrants can legally begin filing their Labor Conditions Application to the Department of Labor on April 1.[22] It allows a six-month window before the employee start date on October 1.

Participants with a U.S. master's degree or higher have two chances to be selected in the lottery: the first lottery is for the 65,000 visas available to all H-1B applicants. Those not selected are then entered in another lottery for 20,000 extra spots. Those without a U.S. advanced degree are entered only in the former lottery.[23]

Feedback edit

Pro-H-1B pundits claim that the early closure, and number of applications received, including H-1B Lottery for the last 10 consecutive years,[24] are indications of employment demand and advocate increasing the 65,000 bachelor's degree cap.[25]

Legal challenge edit

The lottery process was challenged in Tenrec v. USCIS, a class action lawsuit in Oregon, but the case was decided against the plaintiffs.[26][27]

On June 28, 2021, the lottery process was challenged again in LIU et al. v. MAYORKAS et al., a lawsuit filed in United States District Court for the District of Columbia by 500+ FY 2022 H-1B applicants who didn't get selected in March 2021.[28] The plaintiffs' primary argument posited that the lottery process, which is based on registration, contradicts the Immigration and Nationality Act. This act stipulates that the H1-B quota should be based on individuals.[29] Therefore, the lottery should be conducted on an individual basis, regardless of how many registrations are submitted by each individual. However, Judge McFadden ruled against the plaintiffs, stating that the INA only governs the manner in which the H1-B quota for issuance operates, not the lottery itself.[30] Despite the plaintiffs' loss in the case, on October 23, 2023, USCIS announced its intention to adopt the idea and propose changing the lottery to be conducted on an individual basis.[31]

The Labor Condition Application edit

The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of U.S. workers. For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) (not to be confused with the labor certification), certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker meets or exceeds the "prevailing wage" in the area of employment. ("Immigration law has a number of highly technical terms that may not mean the same thing to the average reader."[32]) The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers to break a strike or replace U.S. citizen workers.

While an employer is not required to advertise the position before hiring an H-1B non-immigrant pursuant to the H-1B visa approval, the employer must notify the employee representative about the Labor Condition Application (LCA)—or if there is no such representation, the employer must publish the LCA at the workplace and the employer's office. 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.

History edit

The LCA must be filed electronically using Form ETA 9035E.[33] Over the years, the complexity of the form increased from one page in 1997[34] to three pages in 2008, to five pages as of August 2012.[35]

Employer attestations edit

By signing the LCA, the employer attests that:[36]

  • The employer pays H-1B non-immigrants the same wage level paid to all other individuals with similar experience and qualifications for that specific employment, or the prevailing wage for the occupation in the area of employment, whichever is higher.
  • The employment of H-1B non-immigrants does not adversely affect working conditions of workers similarly employed.
  • On the date the application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation in which H-1B non-immigrants will be employed at the place of employment. If such a strike or lockout occurs after this application is submitted, the employer must notify the DOL's Employment and Training Administration (ETA) within three days, and the application is not used to support petition filings with USCIS (formerly known as INS) for H-1B non-immigrants to work in the same occupation at the place of employment until ETA determines the strike or lockout is over.
  • A copy of this application has been, or will be, provided to each H-1B non-immigrant employed pursuant to this application, and, as of the application date, notice of this application has been provided to workers employed in the occupation in which H-1B non-immigrants will be employed:
    • Notice of this filing has been provided to bargaining representative of workers in the occupation in which H-1B non-immigrants will be employed; or
    • There is no such bargaining representative; therefore, a notice of this filing has been posted and was, or will remain, posted for 10 days in at least two conspicuous locations where H-1B non-immigrants will be employed.

The law requires H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location, or the same as the employer pays to similarly situated employees. Other factors, such as age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.

The approval process for these applications are based on employer attestations and documentary evidence submitted. The employer is advised of their liability if they are replacing a U.S. worker.

Employment authorization limits edit

USCIS clearly states the following concerning H-1B nonimmigrants' employment authorization.

H-1B nonimmigrants 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. Generally, a nonimmigrant employee may work for more than one employer at the same time. However, each employer must follow the process for initially applying for a nonimmigrant employee.[37]

When a H-1B nonimmigrant works with multiple employers, if any of employers fail to file the petition, it is considered as an unauthorized employment and the nonimmigrant fails to maintain the status.

U.S. workforce training edit

In 2007, the U.S. Department of Labor, Employment and Training Administration (ETA), reported on two programs, the High Growth Training Initiative and Workforce Innovation Regional Economic Development (WIRED), which have received or will receive $284 million and $260 million, respectively, from H-1B training fees to educate and train U.S. workers.[citation needed] According to the Seattle Times $1 billion from H-1B fees have been distributed by the Labor Department to further train the U.S. workforce since 2001.[38]

H-1B tax status edit

The taxation of income for an individual with H-1B status depends on whether they are categorized as either nonresident aliens or resident aliens for tax purposes.[39] A nonresident alien for tax purposes is only taxed on income that is effectively connected with a trade or business in the United States and United States-source income that is fixed, determinable, annual, or periodical.[40] A resident alien for tax purposes is taxed on all income, including income from outside the United States.[41]

The classification is determined based on the substantial presence test.[42] If the substantial presence test indicates that the individual is a resident, then income taxation is like any other U.S. person and may be filed using Form 1040 and the necessary schedules. Otherwise, the individual must file as a non-resident alien using Form 1040NR or Form 1040NR-EZ; the individual may claim a benefit from tax treaties that exist between the United States and the individual's country of citizenship.

An individual in the first year in the U.S. may choose to be considered a resident for taxation purposes for the entire year, and must pay taxes on their worldwide income for that year. This first-year choice can only be made once in an individual's lifetime. A spouse, regardless of visa status, must include a valid Individual Taxpayer Identification Number or Social Security number on a joint tax return with the individual in H-1B status.[43][44]

Tax filing rules for an individual in H-1B status may be complex, depending on the individual situation. A tax professional who is knowledgeable about the rules for foreigners may be consulted.

Social Security tax and Medicare tax edit

Employers must generally withhold Social Security and Medicare taxes from the wages paid to employees in H-1B status.[45]

Similarly to U.S. citizens, a person who worked in H-1B status may be eligible to receive Social Security benefit payments at retirement. Generally, a worker must have worked in the U.S. and paid Social Security taxes obtaining at least 40 credits before retirement.[46][47] The person will not be eligible for payments if the person moves outside the U.S. and is a citizen of a country with a social insurance system or a pension system that pays periodic payments upon old age, retirement, or death.[48]

The U.S. has bilateral agreements with several countries to ensure that the credit granted into the U.S. Social Security system, even if it is fewer than 40 credits, is taken into account in the foreign country's comparable system and vice versa.[49]

H-1B and permanent immigration intention edit

Even though the H-1B visa is a non-immigrant visa, it is one of the few temporary visa categories recognized as dual intent, meaning an H-1B holder could legally have an immigration intent (apply for and obtain the green card) while still being a holder of the H-1B visa.[50] Effectively, the non-immigrant visa may eventually lead to permanent residence; companies often support it with the agreement to support the employee with green card petitions.[51][52][53][54]

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 because requirement to maintain a foreign address for this non-immigrant classification was removed in the Immigration Act of 1990.[55] The Trump administration in 2017 expressed its dislike of the use of the H-1B visa, a nonimmigrant visa, as a pathway to permanent residence, and said it intended to restructure the immigration/permanent residence pathway with efficient systems such as Points-based immigration system.[56][57][58] In apparent response, some green card seekers looked to alternatives, like the EB-5 visa, which offers better prospects for permanent immigration than the H-1B visa.[59] As a response to the abuse of H-1B visas, groups like U.S. Tech Workers advertised opposition posters throughout San Francisco's Bay Area Rapid Transit (BART) stations and trains.[60]

H-1B visa dependents edit

H-1B visa holders can bring immediate family members (spouse and children under 21) to the United States under the H-4 visa category as dependents.[61]

An H-4 visa holder may remain in the U.S. as long as the H-1B visa holder retains legal status. An H-4 visa holder is allowed to attend school, apply for a driver's license, and open a bank account in the United States.

Effective May 26, 2015, United States Citizenship and Immigration Services allows some spouses of H-1B visa holders to apply for eligibility to work unrestricted in the United States.[62][63] The spouse would need to file Form I-765, Application for Employment Authorization, with supporting documents and the required filing fee.[63] The spouse is authorized to work in the United States only after the Form I-765 is approved and the spouse receives an Employment Authorization Document card.[63] In 2022, the U.S. government handed out 82,616 work permits for H-1B spouses.[64]

Travel edit

When an H-1B worker travels outside the U.S. for any reason (other than to Canada or Mexico), he or she must have a valid visa stamped on his or her passport for re-entry in the United States. If the worker has an expired stamp but an unexpired i-797 petition, he or she will need to appear in a U.S. Embassy to get a new stamp. In some cases, H-1B workers can be required to undergo "administrative processing," involving extra background checks of different types. Under current rules, these checks are supposed to take ten days or less, but in some cases, have lasted years.[65]

Additionally, an individual with a valid H-1B visa does not need a visa to enter Costa Rica for tourism for up to 30 days.[66] The H-1B visa must be stamped in the passport and be valid for at least six months.[66] The passport needs to be valid for at least six months after entering Costa Rica.[66]

Job loss departure requirement edit

If an employer lays off an H-1B worker, the employer is required to pay for the laid-off worker's transportation outside the United States.

If an H-1B worker is laid off or quits, the worker has a grace period of 60 days or until the I-94 expiration date, whichever is shorter, to find a new employer or leave the country.

There also is a 10-day grace period for an H-1B worker to depart the United States at the end of his/her authorized period of stay. This grace period only applies if the worker works until the H-1B expiration date listed on his/her I-797 approval notice, or I-94 card.[67]

Application process edit

The process of getting a H-1B visa has three stages:

  • The employer files with the United States Department of Labor a Labor Condition Application (LCA) for the employee, making relevant attestations, including attestations about wages (showing that the wage is at least equal to the prevailing wage and wages paid to others in the company in similar positions) and working conditions.[68]
  • With an approved Labor Condition Application, the employer files a Form I-129 (Petition for a Nonimmigrant Worker) requesting H-1B classification for the worker. This must be accompanied by necessary supporting documents and fees.[69]
  • Once the Form I-129 is approved, the worker may begin working with the H-1B classification on or after the indicated start date of the job, if already physically present in the United States in valid status at the time. If the employee is outside the United States, he/she may use the approved Form I-129 and supporting documents to apply for the H-1B visa. With a H-1B visa, the worker may present himself or herself at a United States port of entry seeking admission to the United States, and get a Form I-94 to enter the United States. (Employees who started a job on H-1B status without a H-1B visa because they were already in the United States still need to get a H-1B visa if they ever leave and wish to reenter the United States while on H-1B status.)

Premium processing edit

An applicant may choose to pay for Premium Processing Service. U.S. Citizenship and Immigration Services guarantees processing of applications and petitions within 15 calendar days.[70] U.S. Citizenship and Immigration Services will send an approval notice, a denial notice, a notice of intent to deny, a request for additional evidence, or open an investigation for fraud or misrepresentation within 15 calendar days of receiving Form I-907: Request for Premium Processing Service.[70] If the 15-calendar-day window is not satisfied, then the Premium Processing Fee will be refunded.[70] In the past, USCIS suspended, then resumed the premium processing program.[71][72][73][74][75]

History edit

Legislation history edit

Visa creation edit

On June 27, 1952, Congress passed the Immigration and Nationality Act after overriding a veto by President Harry S. Truman. For the first time, the Immigration and Nationality Act codified United States' immigration, naturalization, and nationality law into permanent statutes, and it introduced a system of selective immigration by giving special preference to foreigners possessing skills that are urgently needed by the country.[76] Several different types of visas were established, including a H-1 visa for "an alien having a residence in a foreign country which he has no intention of abandoning who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability."[77] The term "distinguished merit and ability" was not new to United States immigration law; it had previously been used as a qualification for musicians and artists who had wanted to enter the United States.[78][79] The visa was called an H-1 visa because it had been made into law by section 101(15)(H)(1) of the Immigration and Nationality Act.[77]

The Immigration Act of 1990 edit

The Immigration Act of 1990 was signed into law by President George H. W. Bush on November 20, 1990. The H-1 visa was split into two different visas. The law created the H-1A visa for nurses, and the H-1B visa was established for workers in a "specialty occupation". The Immigration Act defined a specialty occupation as "an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States". In order to qualify, a visa applicant needed any applicable state license for the particular occupation and either an educational degree related to the occupation or an equivalent amount of professional experience. For the first time, there was established a quota of 65,000 H-1B visas available each fiscal year, rather than an unlimited amount before. An employer was required by law to pay such employees at least the prevailing wage for the position, and employers were required to make certain attestations by way of a Labor Condition Application.[80][81]

The American Competitiveness and Workforce Improvement Act of 1998 edit

President Bill Clinton signed the American Competitiveness and Workforce Improvement Act into law on October 21, 1998. The law required that each application for an H-1B must include an additional $500 payment, which would be used for retraining U.S. workers in order to reduce the need for H-1B visas in the future. The quota of H-1B visas was increased from 65,000 to 115,000 for fiscal years 1999 and 2000 only. For an employer with a large number of employees in H-1B status or who had committed a willful misrepresentation in the recent past, the employer attest that the additional H-1B worker would not displace any U.S. workers.[82] The act also gave investigative authority to the United States Department of Labor.

The American Competitiveness in the 21st Century Act of 2000 edit

On October 17, 2000, the American Competitiveness in the 21st Century Act was signed by President Bill Clinton.[83] Under the law, the required retraining fee was increased from $500 to $1,000. The quota was increased to 195,000 H-1B visas in fiscal years 2001, 2002, and 2003 only. Nonprofit research institutions sponsoring workers for H-1B visas became exempt from the H-1B visa quotas.[84]

Under the law, a worker in H-1B status who had already been subject to a visa quota would not be subject to quotas if requesting a transfer to a new employer or if applying for a three-year extension.[85] An H-1B worker became allowed to change employers if the worker had an I-485 application pending for six months and an approved I-140 and if the new position is substantially comparable to their current position.[86]

In the case of an H-1B holder's spouse in H-4 status, the spouse may be eligible to work in the United States under certain circumstances.[87] The spouse must have an approved "Immigration Petition for Alien Worker" form or the spouse must have been given H-1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000.[87]

Free trade agreements in 2003 edit

Congress ratified the Singapore–United States Free Trade Agreement in 2003. It ratified the Chile–United States Free Trade Agreement later that year. With these free trade agreements, a new H-1B1 visa was established as being available solely for people from either Singapore or Chile. Unlike H-1B visas that had a limited renewal time, H-1B1 visas can be renewed indefinitely. H-1B1 visas are subject to a separate quota of 6,000 per fiscal year. Unlike H-1B visas, an H-1B1 visa is not a dual-intent visa, and an H-1B1 applicant must convince the visa officer that they have no intention of permanently immigrating to the United States.

The H-1B Visa Reform Act of 2004 edit

The H-1B Visa Reform Act of 2004 was a part of the Consolidated Appropriations Act, 2005, which President George W. Bush signed on December 6, 2004. For employers with 26 or more employees, the required retraining fee was increased from $1,000 to $1,500, and it was reduced to $750 for all other employers. A new $500 "anti-fraud fee" was established that was required to be paid by the employer with the visa application.[88] While the H-1B quota returned to 65,000 per year, the law added 20,000 visas for applicants with J-1 status with either a master's degree or a doctorate degree from a U.S. graduate school. Governmental entities became exempt from H-1B visa quotas. According to the law, H-1B visas that were revoked due to either fraud or willful misrepresentation would be added to the H-1B visa quota for the following fiscal year. The law also allowed one-year extensions of H-1B for H-1B visa holders who were applying for permanent residency and whose petitions had been pending for a long time. The United States Department of Labor had more investigative authority, but an employer could defend against misdeeds by using either the Good Faith Compliance Defense or the Recognized Industry Standards Defense.

Proposed legislation in 2007 edit

Senators Dick Durbin of Illinois and Charles Grassley of Iowa began introducing "The H-1B and L-1 Visa Fraud & Prevention Act" in 2007. According to Durbin, speaking in 2009, "The H-1B visa program should complement the U.S. workforce, not replace it;" "The…program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs." Compete America,a tech industry lobbying group, opposed the proposed legislation.[89]

The Consolidated Natural Resources Act of 2008 edit

The Consolidated Natural Resources Act of 2008 federalized immigration in the U.S. territory of the Commonwealth of the Northern Mariana Islands, and it stipulated that, during a transition period, numerical limitations would not apply to otherwise qualified workers in the H visa category in the U.S. territories of Guam and the Commonwealth of the Northern Mariana Islands.[90] The exemption does not apply to any employment to be performed outside of Guam or the Commonwealth of the Northern Mariana Islands.[91]

The Employ American Workers Act of 2009 edit

The Employ American Workers Act, as part of the American Recovery and Reinvestment Act of 2009, was signed into law by President Barack Obama on February 17, 2009.[92] For employers who applied to sponsor a new H-1B and who had received funds under either the Troubled Asset Relief Program (TARP) or the Federal Reserve Act Section 13, the employers were required to attest that the additional H-1B worker would not displace any U.S. workers and that the employer had not laid off, and would not lay off, any U.S. worker in a job equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.[93]

Proposed legislation in 2017-2018 edit

In 2017, the U.S. Congress considered more than doubling the minimum wage required for an H-1B holder from the $60,000 (USD) established in 1989 and unchanged since then. The High Skilled Integrity and Fairness Act, introduced by U.S. Rep. Zoe Lofgren of California, would raise H-1B holders' minimum salaries to $130,000.[94] The action was criticized in the Indian press for confirming "the worst fears of [Indian] IT companies" in the wake of the reforms discussed during the 2016 Presidential election by both major candidates, and for causing a 5% drop in the BSE SENSEX index.[95] Though, India in general has been welcoming this change and requirement since 2015.[96] Lofgren's office described it as a measure to "curb outsourcing abuse" citing unfair tech hiring practices by employers including Disney and University of California San Francisco.[97]

Executive action history edit

The United States Citizenship and Immigration Services has updated and issued new rules regarding the H-1B visa in the past decade.

STEM Optional Practical Training extension and cap-gap extension edit

On April 2, 2008, the U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff announced a 17-month extension to the Optional Practical Training for students in qualifying STEM fields. The Optional Practical Training extension was included in the rule-change commonly referred to as the H-1B Cap-Gap Regulations.[98][99] The OPT extension only benefits foreign STEM (Science, Technology, Engineering, or Mathematics) students and is not available to foreign students of other disciplines. The 17-month work-authorization extension allows the foreign STEM student to work up to 29 months in total on the student visa, allowing the STEM student multiple years to obtain an H-1B visa.[100][101] To be eligible for the 12-month work-permit, any bachelor's degree in any field of study is valid. For the 17-month OPT extension, a student must have received a STEM degree in one of the approved majors listed on the USCIS website.[102] The STEM extension can be combined with the cap-gap extension.[103] The cap-gap extension was also created in 2008 and allows a STEM OPT worker who has a pending or approved H-1B visa to remain in the U.S until the H-1B visa begins.[104]

The 2010 Neufeld Memo edit

On January 8, 2010, United States Citizenship and Immigration Services issued a memorandum stating that there must be a clear employee-employer relationship between the petitioner (employer) and the beneficiary (prospective visa holder). The memorandum outlines what the employer must do to be considered in compliance as well as putting forth the documentation requirements to back up the employer's assertion that a valid relationship exists.[105][106]

An employer must maintain a valid employee-employer relationship throughout the period of the worker's stay in the United States.[107] The employer must have actual control or the right to control the employee and to be able to decide when, where, and how the employee will be employed and performs work.[107]

A valid employee-employer relationship typically includes many of the following: supervising the worker on- and off-site; maintaining such supervision through calls, reports, or visits; having a right to control the work on a day-to-day basis if such control is required; providing the worker with the tools and equipment needed for the job; having the ability to hire, pay, and terminate the worker's job; evaluating the worker's products, progress, and performance; provision of some type of employee benefits; allowing the worker to use the employer's proprietary information when performing work; assigning work to the worker that produces an end-product related to the employer's business; and having the ability to control the manner and means in which the worker accomplishes tasks. The memorandum further states that "common law is flexible about how these factors are to be weighed".[105]

Third-party placement firms and staffing firms do not qualify for H-1B status because they fail the control test.[106][108][109]

The Tech Serve Alliance filed a lawsuit against implementing the memo. Senator John Cornyn brokered a meeting between a coalition of IT outsourcing firms and USCIS, which stopped the implementation of the Neufeld Memo.[110]

2015 H-1B dependent work authorization edit

In 2015, the U.S. Department of Homeland Security issued a rule that allowed certain spouses of H-1B workers to be eligible for work authorization.[111][112][113][114]

Under the rule, the H-1B worker must either be the principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) or have H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, and the spouse must be in the United States with H-4 status.[111][115][116]

The U.S. Department of Homeland Security stated that it issued the rule in order to ease the financial burden that these families may experience as they transition from nonimmigrant to lawfully permanent resident status.[111][117] The rule also reduces disincentives for H-1B workers to leave the United States, which disrupts the United States businesses employing these workers.[111][118]

2015 work site guidance change edit

In 2015, United States Citizenship and Immigration Services issued final guidance stating that if an H-1B worker whose work site location changes to a different metropolitan area, its material change that requires the employer to certify a new Labor Condition Application to the Department of Homeland Security. Temporary work site changed do not require a new LCA. Examples include when a H-1B worker attends a training session, a seminar, or a conference of a short duration or when the H-1B worker is temporarily moved to a short-term placement of less than 30 days. If the amended H-1B petition is disapproved but the original petition remains valid, then the H-1B worker retains their H-1B status as long as they return to work at the original work site.[119]

2016 H-1B maximum stay clarification edit

On December 5, 2016, United States Citizenship and Immigration Services issued a memorandum to provide guidance regarding periods of admissions for an individual in H-1B status. The memorandum stated that time spent as either an H-4 dependent or an L-2 dependent does not reduce the maximum allowable period of stay available to individuals in H-1B status.[120]

2017 employment termination grace period rule edit

On November 18, 2017, United States Citizenship and Immigration Services released a rule that affects individuals in H-1B status whose employment ends.[121][122] In these cases, the individual has a grace period of 60 days to leave the United States or change to another legal status that allows them to remain in the United States.[123]

2017 H-4 victims of domestic violence work authorization edit

In 2005, the Violence Against Women and Department of Justice Reauthorization Act of 2005 allowed work authorization for victims of domestic violence who are in H-4 status.[124] On February 17, 2017, United States Citizenship and Immigration Services instituted a process for these victims to apply for work authorization.

Eligible individuals include current H-1B visa spouses, and individuals whose marriage ended because of battery or extreme cruelty perpetrated by the individual's former spouse.[125] The individual must also have entered the United States in an H status, must continue to be in H-4 status, and were themselves or their child battered or subjected to extreme cruelty perpetrated by the H-1B spouse.[125] The spouse's application must include evidence of the abuse.[125]

Before this policy was implemented, an abused spouse in H-4 status would be required to leave the United States the date the person divorced the abusive spouse.[125] The divorced spouse now has a way to legally remain in the United States and legally work in the United States after the divorce is finalized or pending.[125] If approved, the authorization is valid for two years.[125]

2017 computer-programming position memo edit

A memorandum from December 22, 2000, stated that, because most computer-programming positions required a bachelor's degree, computer programming was considered a specialty occupation that qualified for an H-1B visa.[126][127] On March 31, 2017, United States Citizenship and Immigration Services released a memorandum stating that computer programming would no longer be automatically considered a specialty occupation, partly because a bachelor's degree was no longer typically required of these positions.[128] An application for an H-1B visa for a computer programmer must sufficiently describe the duties and the level of experience and responsibilities of the position in order to demonstrate how the position is a senior, complex, specialized, or unique computer-programming position rather than an entry-level position in order to qualify for an H-1B visa.[129][130]

In addition, the United States Department of Justice warned employers not to discriminate against U.S. workers by showing a preference for hiring H-1B workers.[131]

2017 Buy American, Hire American executive order edit

On April 18, 2017, President Trump signed an executive order that directed federal agencies to implement a "Buy American, Hire American" strategy, a key pledge during the campaign.[132][133][134] At a press briefing, the executive order directed federal agencies such as the Department of Labor, Department of Justice, Department of Homeland Security, and Department of State to implement a new system that favors higher-skilled, higher-paid applicants.[135][136][137] The executive order is intended to order federal agencies to review and propose reforms to the H-1B visa system.[138] Furthermore, these departments will "fill in the details with reports and recommendations about what the administration can legally do."[139] Trump stated that the executive would "end the theft of American prosperity," which he said had been brought on by low-wage immigrant labor.[140]

On January 9, 2018, the USCIS said that it was not considering any proposal that would force H-1B visa holders to leave the United States during the green-card process.[141] USCIS said an employer could request extensions in one-year increments under section 106(a)–(b) of the American Competitiveness in the 21st Century Act instead.[142][141]

2018 extension rejection rule edit

On June 28, 2018, the United States Citizenship and Immigration Services announced that, when a person's request for a visa extension is rejected, the person will be deported from the United States.[143] The Trump administration said they are not considering any proposal that would force H-1B visa holders to leave the country.[144]

2020 H-1B entry suspension edit

On April 22, 2020, President Donald Trump signed a presidential proclamation that temporarily suspended the entry of people with non-immigrant visas, including H-1B visas.[145] On June 22, 2020, President Trump extended the suspension for H-1B visa holders until December 31, 2020.[146][147] On December 31, 2020, President Trump issued a presidential proclamation extending the suspension of entry until March 31, 2021, because they would pose "a risk of displacing and disadvantaging United States workers during the economic recovery following the COVID-19 outbreak".[148]

2020 H-1B lottery rule edit

On October 28, 2020, a new rule to reform the H-1B lottery by prioritizing workers with the highest wage was approved.[149]

2021 H-1B entry suspension expiration edit

President Joe Biden allowed the suspension to expire on March 31, 2021, which allowed H-1B visa holders to enter the U.S. beginning on April 1, 2021.[150]

General history edit

2015 spotlight on H-1B visas edit

There was extensive reporting in 2015 on problems with the existing H-1B visa programs. Journalists reported that many prominent companies such as Disney and Southern California Edison were replacing American workers using the H-1B visa program. Disney used H-1B outsourcing firm Cognizant to replace its American IT workers. The company required these workers to train their replacements in order to receive severance.[151]

The New York Times editorial board, speaking in June 2015, loopholes and lax enforcement of the H-1B visa program has resulted in exploitation of both visa holders and American workers.[152]

In June 2015, ten Senators requested the U.S. Department of Labor open an investigation of outsourcing of technical tasks by Southern California Edison to Tata Consultancy Services and Infosys then laying off 500 technology workers.[153][154] After a ten-month investigation, the U.S. Department of Labor determined that no charges should be filed against any of the firms.[155][156]

In 2015 and 2016, the Senate Judiciary Committee held hearings on problems with the H-1B visa. On March 17, 2015, Chairman Chuck Grassley of the Senate Judiciary Committee held a hearing on "Immigration Reforms Needed to Protect Skilled American Workers".[157][158][159] On February 25, 2016, Immigration Subcommittee Chairman Jeff Sessions held a hearing on "The Impact of "High-Skilled" Immigration on U.S. Workers.[160][161] These hearings' witnesses included AFL-CIO President Richard Trumka, Howard University Associate Professor Ron Hira, American Immigration Council Benjamin Johnson, Washington Alliance of Technology Workers Attorney John Miano, former Disney IT Engineer Leo Perrero, Colgate University Associate Professor of Economics Chad Sparber, and Rutgers University Professor Hal Salzman.

Senator Chuck Grassley of Iowa, chairman of the committee commented on the H-1B visa during the March 17th hearing:

The program was intended to serve employers who could not find the skilled workers they needed in the United States. Most people believe that employers are supposed to recruit Americans before they petition for an H-1B worker. Yet, under the law, most employers are not required to prove to the Department of Labor that they tried to find an American to fill the job first. And, if there is an equally or even better qualified U.S. worker available, the company does not have to offer him or her the job. Over the years the program has become a government-assisted way for employers to bring in cheaper foreign labor, and now it appears these foreign workers take over – rather than complement – the U.S. workforce.[162]

2016 election policy issue edit

The H-1B visa became an issue in the 2016 United States presidential election. According to Computerworld, candidate Donald Trump took a stance to "pause" and re-write the H-1B system.[163] Additionally, he invited guest speakers to raise awareness of the hundreds of IT workers displaced by H-1B guest workers during his rallies. Candidate Donald Trump stated his policy position and solution on H-1Bs in his campaign website on immigration policy:

"Increase prevailing wage for H-1Bs.

We graduate two times more Americans with STEM degrees each year than find STEM jobs, yet as much as two-thirds of entry-level hiring for IT jobs is accomplished through the H-1B program. More than half of H-1B visas are issued for the program's lowest allowable wage level, and more than eighty percent for its bottom two. Raising the prevailing wage paid to H-1Bs will force companies to give these coveted entry-level jobs to the existing domestic pool of unemployed native and immigrant workers in the U.S., instead of flying in cheaper workers from overseas. This will improve the number of black, Hispanic and female workers in Silicon Valley who have been passed over in favor of the H-1B program. Mark Zuckerberg’s personal Senator, Marco Rubio, has a bill to triple H-1Bs that would decimate women and minorities.

Requirement to hire American workers first.

Too many visas, like the H-1B, have no such requirement. In the year 2015, with 92 million Americans outside the workforce and incomes collapsing, we need companies to hire from the domestic pool of unemployed. Petitions for workers should be mailed to the unemployment office, not USCIS."[164]

Candidate Hillary Clinton spoke negatively of H-1B workers being hired because they are less expensive and since they are reliant on the employer, more likely to be compliant during abuse. Clinton said that she was unlikely to consider the H-1B system individually and only would look towards reforms as part of a comprehensive immigration reform.[163]

Presidential candidate Bernie Sanders opposed guest worker programs[165] and was also skeptical about skilled immigrant (H-1B) visas, saying, "Last year, the top 10 employers of H-1B guest workers were all offshore outsourcing companies. These firms are responsible for shipping large numbers of American information technology jobs to India and other countries."[166] In an interview with Vox he stated his opposition to an open borders immigration policy, describing it as:

...a right-wing proposal, which says essentially there is no United States...you're doing away with the concept of a nation-state. What right-wing people in this country would love is an open-border policy. Bring in all kinds of people, work for $2 or $3 an hour, that would be great for them. I don't believe in that. I think we have to raise wages in this country, I think we have to do everything we can to create millions of jobs.[167][168]

2019 H-1B data edit

In 2019, USCIS unveiled a H-1B employer data hub which provides information on employee H-1B visa petitions starting from fiscal year 2009.[169]

In 2019, the USCIS Office of Policy and Strategy released the latest population estimate of H-1B visa workers in the United States. As of September 30, 2019, there were 583,420 people authorized to work on an H-1B visa. First, the agency estimated the number of approved H-1B petitions. The estimated number of approved unique beneficiaries numbered 619,327 people. USCIS estimated the number of foreign nationals denied by the State Department subtracting 2,100 visas. Furthermore, USCIS subtracted out the number of H-1B workers who adjusted to legal permanent residency status (estimated at 32,332) and those who requested another non-immigration status (estimated at 1,475).[170]

2021 electronic registration system edit

In 2021, USCIS rolled out its first electronic registration system for the H-1B lottery.[171]

Economic impact edit

There is a divide between economists and academics about the impact H-1B visas have on innovation, the effect on U.S. workers, and overall benefits to the U.S. economy.

Studies have shown that H-1B visas have welfare-improving effects for Americans, leading to significant wage gains, lower consumer prices, greater innovation, and greater total factor productivity growth.[172][173][174][175] H-1B visas have led to lower prices for consumers, greater output, and improved performance by companies.[173] A study found that H-1B visa holders have been associated with greater innovation and economic performance.[175]

Meanwhile, other studies have shown the exact opposite. A National Bureau of Economic Research (NBER) paper concluded that firms who received H-1B visas do not necessarily innovate or grow faster, nor patent more than firms who do not.[176]

Economists have also found that H-1B visas lead to lower wages and employment for competing U.S. workers. A paper by George J. Borjas for the National Bureau of Economic Research found that "a 10 percent immigration-induced increase in the supply of doctorates lowers the wage of competing workers by about 3 to 4 percent."[177]

A 2016 study found that H-1B visas kept wages for U.S. computer scientists 2.6% to 5.1% lower, and employment in computer science for U.S. workers 6.1% to 10.8% lower, but resulted in greater production efficiency, lowered the prices of IT products, raised the output of IT products and caused substantially higher profits for IT firms.[178]

The same study also found that for every 100 foreign computer science workers who enter the U.S., they crowd out 33 to 61 domestic computer science workers.[173]

Criticism edit

Corporate labor subsidy edit

Critics of the H-1B visa program say it is a government labor subsidy for corporations. Paul Donnelly, in a 2002 article in Computerworld, cited Milton Friedman as stating that the H-1B program acts as a subsidy for corporations.[179] Others holding this view include Norman Matloff, who testified to the U.S. House Judiciary Committee Subcommittee on Immigration on the H-1B subject.[180]

Professor Matloff describes four types of labor savings for corporations and employers.[181]

  • Type I labor savings is where employers pay H-1Bs less than similarly qualified American workers.
  • Type II labor savings are where employers hire younger H-1Bs in lieu of older and more expensive American workers.
  • Type III labor savings are where employers force H-1B workers to work longer hours.
  • Type IV labor savings are when the oversaturation of H-1B workers suppresses wages in the labor market.

American technology companies benefit most from Type II labor savings, where these firms hire a 25-year-old H-1B worker instead of a 50-year-old American programmer.

Compliant workforce edit

Critics say that employers exercise outsized control over H-1B workers since the visa ties the workers to the employer. Additionally, these workers are less likely to complain about poor working conditions for fear of visa revocation and deportation.[181]

No STEM labor shortage edit

Academic researchers have found no labor shortage in STEM, undercutting the primary reason for the H-1B visa's existence.

Researchers carried out studies from the 1990s through 2022 from multiple universities and non-profit organizations which found there is no STEM shortage and that the U.S. produced sufficient numbers of willing and able STEM (Science, Technology, Engineering and Mathematics) workers.[citation needed]

In 2022, Howard University public policy professor Ron Hira found there was no shortage in STEM due to stagnant wages in IT and a seven percent decline in real wages for engineers.[182] In the past, he has called the IT talent shortage "imaginary,"[183] a front for companies that want to hire cheaper foreign guest workers.

Studies from Rutgers University professor Hal Salzman, and co-authors B. Lindsay Lowell and Daniel Kuehn, have concluded that the U.S. has been employing only 30% to 50% of its newly degreed able and willing STEM workers to work in STEM fields.[184][185]

A 2012 IEEE announcement of a conference on STEM education funding and job markets stated "only about half of those with under-graduate STEM degrees actually work in the STEM-related fields after college, and after 10 years, only some 8% still do."[186]

Rutgers University Public Policy Professor Hal Salzman points to simultaneous industry layoffs, when industry claims labor shortage. In his Senate Judiciary testimony, he states that between 2006 and 2016, the IT industry (the predominant user of the H-1B visa) laid off on average 97,000 workers per year, more than the number of 74,000 H-1B workers brought for the IT industry.[187]

UC Davis Professor Norman Matloff's University of Michigan Journal of Law Reform paper claims that there has been no shortage of qualified American citizens to fill American computer-related jobs, and that the data offered as evidence of American corporations needing H-1B visas to address labor shortages was erroneous.[188]

The United States General Accounting Office found in a report in 2000 that controls on the H-1B program lacked effectiveness.[189] The GAO report's recommendations were subsequently implemented.

High-tech companies often cite a tech-worker shortage when asking Congress to raise the annual cap on H-1B visas, and have succeeded in getting various exemptions passed. The American Immigration Lawyers Association (AILA), described the situation as a crisis, and the situation was reported on by the Wall Street Journal, BusinessWeek and Washington Post. Employers applied pressure on Congress.[190] Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill, "warning of dangers to the U.S. economy if employers can't import skilled workers to fill job gaps."[190] Congress considered a bill to address the claims of shortfall[191] but in the end did not revise the program.[192]

According to a study conducted by John Miano and the Center for Immigration Studies, there is no empirical data to support a claim of employee worker shortage.[193] Citing studies from Duke, Alfred P. Sloan Foundation, Georgetown University and others, critics have also argued that in some years, the number of foreign programmers and engineers imported outnumbered the number of jobs created by the industry.[194] Hire Americans First has also posted hundreds of first hand accounts of H-1B visa harm reports directly from individuals negatively impacted by the program, many of whom are willing to speak with the media.[195]

Guestworker influx and wage depression edit

Wage depression as a result of an increased supply of discounted guest workers is a chronic complaint critics have about the H-1B program. In the 21st century, labor experts have found that guest workers are abundantly available in times of wage decline and weak workforce demand.[184]

The Economic Policy Institute found that sixty percent of certified H-1B positions were below the local median wage. In Washington D.C, companies hiring a level 1 entry-level H-1B software developer received a discount of 36%, or $41,746. For level II workers, companies received a discount of 18%, or $20,863.[196]

In 2014, The Department of Homeland Security annual report indicates that H-1B workers in the field of Computer Science are paid a mean salary of $75,000 annually, almost 25,000 dollars below the average annual income for software developers [197] and studies have found that H-1B workers are paid significantly less than U.S. workers.[198][199] It is claimed that the H-1B program is primarily used as a source of cheap labor.[200][201][202][203][204][205][206]

LCA and employer attestation problems edit

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 evidence exists that some employers get around these provisions and avoid paying the actual prevailing wage despite stiff penalties for abusers.[207]

Theoretically, the LCA process appears to offer protection to both U.S. and H-1B workers. However, according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective.[82] Ultimately, the employer, not the Department of Labor, determines what sources 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."[208] In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted. Hire American First has posted several hundred first hand accounts of individuals negatively impacted by the program.[195] According to attorney John Miano, the H-1B prevailing wage requirement is "rife" with loopholes.[206]

Internal "brain drain" edit

Opponents of the H-1B visa program says that an influx of guest workers in STEM causes young American college graduates to stop pursuing these fields. For example, bachelor's degree enrollment in computer science fell 50% from 2002 to 2007 as students shied away.[209]

Discrimination against Americans edit

Critics of the H-1B visa program say the program enables Silicon Valley to employ discrimination against U.S. citizens and permanent residents. In 2021, Facebook settled a claim with the Department of Justice that it discriminated against U.S. workers in favor of temporary visa holders. The company paid a $4.75 million civil penalty and set aside $9.5 million for eligible victims.[210]

Age discrimination edit

Critics of the H-1B visa program say the program enables Silicon Valley to employ age discrimination against older workers.[211]

Indentured servitude edit

Critics contend that H-1B holders is a modern-day form of high-tech indentured servants,[212] Guest workers on H-1B visas in the IT sector have limited employer mobility compared to U.S. workers.[213] Although immigration 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 is legally acknowledged as a possible step towards a green card under what is called the doctrine of dual intent.

Some workers who come to the U.S. on H-1B visas receive poor, unfair, and illegal treatment by brokers who place them with jobs in the US, according to a report published in 2014.[214][215] The United States Trafficking Victims Protection Reauthorization Act of 2013 was passed to help protect the rights of foreign workers in the United States, and the U.S. Department of State distributes pamphlets to inform foreign workers of their rights.[216]

Companies have stolen the wages of H-1B workers. Labor researchers found that HCL stole $95 million from its H-1B visa workers annually.[217]

Green card sponsorship backlog edit

There is currently a backlog for employer-sponsored green cards. Critics of the H-1B visa program say the reason is in part the American Competitiveness in the 21st Century Act and the dual intent nature of the H-1B visa, allowing a temporary non-immigrant to gain an employer-sponsored green card. The law lets foreign nationals waiting for a green card the ability to extend their H-1B visa past the normal six-year limit.[218]

Problem with dual intent edit

Dual intent enables a H-1B visa holder the ability to apply for a green card while on a temporary guest worker visa. The issue critics have with dual intent is that it creates a backlog for green cards as non-immigrant temporary guest workers and people who do intend to immigrate both are vying for permanent residency status.

The "outsourcing and offshoring" visa edit

Critics of the program take issue with American and outsourcing companies using H-1B visa workers to offshore work abroad.[219][220] Researchers have found that two thirds of IT jobs are offshorable. The remaining third remains onshore in order to be the conduit between American clients and offshore work teams.[221] Additionally, offshoring weakens the domestic American workforce.

The leading users of H-1B visas are Indian outsourcing firms. In 2021, half of the top thirty employers of H-1B visa holders were specifically outsourcing firms.[222] The top 10 H-1B employers in 2014 such as Tata Consultancy, Cognizant, Infosys, Wipro, Accenture, and IBM all used the program to ship jobs offshore.[220][223] Critics of H-1B use for outsourcing have also noted that more H-1B visas are granted to companies headquartered in India than companies headquartered in the United States.[224] Furthermore, even though these IT outsourcing companies have a physical footprint in the United States, they hire temporary foreign guest workers instead.[209]

Senator Dick Durbin stated in a speech on H-1B visa reform:

"The H-1B job visa lasts for three years and can be renewed for three years. What happens to those workers after that? Well, they could stay. It is possible. But these new companies have a much better idea for making money. They send the engineers to America to fill spots—and get money to do it—and then after the three to six years, they bring them back to work for the companies that are competing with American companies. They call it their outsourcing visa. They are sending their talented engineers to learn how Americans do business and then bring them back and compete with those American companies."[225]

Of all computers systems analysts and programmers on H-1B visas in the U.S., 74 percent were from Asia.

Large migration of Asian IT professionals to the United States has been a central component to the emergence of the offshore outsourcing industry.[226]

In FY 2009, due to the worldwide recession, applications for H-1B visas by offshore outsourcing firms were significantly lower than in previous years,[227] yet 110,367 H-1B visas were issued, and 117,409 were issued in FY2010.

Computerworld and The New York Times have reported on the inordinate share of H-1B visas received by firms that specialize in offshore-outsourcing,[228] the subsequent inability of employers to hire foreign professionals with legitimate technical and language skill combinations,[229] and the outright replacement of American professionals already performing their job functions and being coerced to train their foreign replacements.[230][231]

Replacing Americans and training foreign replacements edit

There have been cases where employers used the program to replace their American employees with H-1B employees, and in some of those cases, the American employees were even ordered to train their replacements.[219][232][233][234]

Researchers have found that during the 2022 tech layoffs, companies laid off their U.S. workforce while continuing to bring in more H-1B workers. The top 30 H-1B employers in 2022 laid off at least 85,000 workers, while bringing in 34,000 H-1B workers.[235]

Designed to displace edit

Critics contend that the H-1B visa is not being abused. Instead, the program was designed to displace American workers and that companies are using it as designed.[236] Employers can claim anything as the prevailing wage because the Department of Labor only checks for the correctness of form completion.

No employer for entrepreneurs and self-employed consultants edit

Entrepreneurs do not qualify for the H-1B visa. The United States immigration system's EB-5 visa program does permit foreign entrepreneurs to apply for a green card if they make a sufficient investment in a commercial enterprise and intend to create 10 or more jobs in the United States.[237] The University of Massachusetts began a program in 2014 allowing entrepreneurs to found U.S. companies while fulfilling visa requirements by teaching and mentoring on campus, with the university as sponsoring employer.[238] Likewise, self-employed consultants have no visa that would allow them to enter the country and perform work independently for unspecified, extended periods (although, note that a B-1 visa would permit temporary travel to the U.S. to consult for specific periods),[239] so consulting companies have been formed for the sole purpose of sponsoring employees on H-1B visas to allow them to perform work for clients, with the company sharing the resulting profit.

Fraud edit

The United States Citizenship and Immigration Services "H-1B Benefit Fraud & Compliance Assessment" of September 2008 concluded 21% of H-1B visas granted originate from fraudulent applications or applications with technical violations.[240] Fraud was defined as a willful misrepresentation, falsification, or omission of a material fact. Technical violations, errors, omissions, and failures to comply that are not within the fraud definition were included in the 21% rate.[241]

USCIS, H-1B Benefit Fraud and Compliance Assessment (2008)[241]
Beneficiary Education Level Violation Rate % of Sample Total Cases
Bachelor's Degree 31% 43% 106
Graduate Degree 13% 57% 140
USCIS, H-1B Benefit Fraud & Compliance Assessment (2008)[241]
Reported Occupations Violation Rate % of Sample Total Cases
Architecture, Engineering, and Surveying 8% 15% 36
Mathematics and Physical Sciences 0% 1% 3
Computer Professionals 27% 42% 104
Life Sciences 0% 4% 11
Social Sciences 0% <1% 1
Medicine and Health 10% 4% 10
Education 9% 13% 33
Law 0% <1% 1
Writing 0% <1% 1
Art 29% 3% 7
Accounting, Human Resources, Sales, Advertising, and Business Analysts 42% 11% 26
Managerial 33% 4% 9
Miscellaneous Professions 0% 2% 4

In 2009, federal authorities arrested people for a nationwide H-1B visa scam in which they allegedly submitted false statements and documents in connection with petitions for H-1B visas.[242]

Fraud has included acquisition of a fake university degree for the prospective H-1B worker, coaching the worker on lying to consul officials, hiring a worker for which there is no U.S. job, charging the worker money to be hired, benching the worker with no pay, and taking a cut of the worker's U.S. salary. The workers, who have little choice in the matter, are also engaged in fraud, and may be charged, fined, and deported.[243]

Visa lottery fraud edit

Critics of the H-1B lottery do not like that the lottery is randomized and does not select for skill or wage.[citation needed]

Additionally, outsourcing companies' game the system by filing as many electronic lottery applications as possible (only $10 each) for jobs that do not exist. In 2023, there were 781,000 lottery entries for 85,000 visas. This was partially the result of different companies submitting the same applicant multiple times. USCIS says that there is a high prevalence of fraud with the new electronic registration system.[244][245]

Additional visas edit

Selected listing of non-family preference visas where employment can be or is authorized.

In addition to H-1B visas, there are a variety of other visa categories that allow foreign workers to come into the U.S. 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-1A visa is for managers or executives who either manage people or an essential function of the company. An L-1B visa is appropriate for non-immigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. 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 North American Free Trade Agreement (NAFTA), and are issued to Canadian and Mexican citizens. TN visas are only available to workers who fall into one of a preset list of occupations determined by the NAFTA treaty. There are specific eligibility requirements for the TN Visa.[249]

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

H-1B1 visas are a sub-set of H-1B issued to residents of Chile and Singapore. H-1B1 visas for residents of Chile was part of the Chile–United States Free Trade Agreement; PL 108-77 Section 402(a)(2)(B), 117 Stat. 909, 940; S 1416, HR 2738, which was passed by the U.S. House of Representatives on July 24, 2003. H-1B1 visas for residents of Singapore was part of the Singapore–United States Free Trade Agreement, PL 108-78 Section 402(2), 117 Stat. 948, 970-971; S 1417, HR 2739, which passed the U.S. House of Representatives on July 24, 2003, passed the U.S. Senate on July 31, 2003, and signed by President George W. Bush on May 6, 2003. According to U.S. Citizenship and Immigration Services, if there are any unused H-1B1 visas during a particular year, that number is added to the following year's H-1B base quota.

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 visa: The H-2B non-immigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary non-agricultural 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.

H-1B visa statistics edit

General statistics edit

  • The H-1B visa program is the largest guest worker visa program in the United States.[250]
  • The H-1B visa has seen continual growth. There were an estimated 425,000 H-1Bs in 2000.[251] USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019.[1]
  • The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991.[2]
  • There were 206,002 new and initial H-1B visas issued in 2022, the highest number of H-1B visa issuances in the program's history.[3]
  • Between 2001 and 2015, the U.S. government distributed 1.8 million H-1B visas.[252]
  • Between 2007 and 2016, 60% of H-1B applicants were for computer and mathematical occupations.[252]
  • Universities and colleges, nonprofits and government research institutions account for 10% of H-1B visa applications.[252]
  • 1 in 4 H-1B applications do not require a bachelor’s degree.[252]
  • In 2020, 70% of H-1B visa workers work in computer-related occupations. 9% went to engineering, architecture, ad surveying.[253]

H-1B demographic statistics edit

  • In 2021, 74.1% of H-1B visas were approved to Indian nationals while 12.4% were approved to Chinese nationals.[254]
  • The average age of an H-1B worker is 33.[253]
  • Between 2001-2015, 892,814 H-1B visas or 50.5% of all visas were awarded to Indian nationals. China had 9.7% of H-1Bs with 171,577. Canada is third with 3.8% or 66,582.[252]

U.S. geographic statistics edit

  • The New York metropolitan area had the most H-1B approvals, with between 2010 and 2016.[250] Dallas-Fort Worth metropolitan region came in second with 74,000 H-1B visa approvals while the Washington D.C. metropolitan region with 64,800 H-1B visa approvals.
  • Employers in California, New Jersey, Texas, and New York were the biggest users of H-1B visas in 2013.[252]
  • New Jersey has the most H-1B visa workers per capita.[252]

2020 education statistics edit

  • 7% of H-1B workers had a doctorate.[253]
  • 57% of H-1B workers had a master's degree.[253]
  • 36% of H-1B workers had a bachelor's degree.[253]

2020 salary statistics edit

  • In 2020, the median salary for all H-1B workers was $101,000.[253]

H-1B visa tables and charts edit

H-1B issued years 2006-2008
Issued by continent 2005
Issued by nation in 2005

Approved H-1B applications edit

H-1B Applications Approved by Fiscal Year
Fiscal Year Initial
employment
approvals
Continuing
employment
approvals
Total  
2000 136,787 120,853 257,640
2001 201,079 130,127 331,206
2002 103,584 93,953 197,537
2003 105,314 112,026 217,340
2004 130,497 156,921 287,418 [255]
2005 116,927 150,204 267,131 [256]
2006 109,614 161,367 270,981 [257]
2007 120,031 161,413 281,444 [258]
2008 109,335 166,917 276,252 [259]
2009 86,300 127,971 214,271 [260]
2010 76,627 116,363 192,990 [261]
2011 106,445 163,208 269,653 [262]
2012 136,890 125,679 262,569 [263]
2013 128,291 158,482 286,773 [264]
2014 124,326 191,531 315,857 [265]
2015 113,605 161,714 275,317 [266]
2016 114,504 230,759 345,262 [267]
2017 108,101 257,581 365,682 [268]
2018 93,615 238,743 332,358 [269]
2019 138,297 249,476 388,403 [270]
H-1B Applications Approved by Education or Equivalent
Fiscal Year No High School Diploma Only High School Diploma Less Than 1 year of College 1+ years of College Equivalent of Associate's Total Less Than
Bachelor's Degree
Bachelor's Degree or Higher  
2000 554 288 158 1,290 696 2,986 130,304
2001 247 895 284 1,376 1,181 3,983 157,660
2002 169 806 189 849 642 2,655 115,697
2003 148 822 122 623 534 2,249 104,947
2004 123 690 137 421 432 1,803 137,162 [255]
2005 107 440 77 358 363 1,345 122,754 [256]
2006 96 392 54 195 177 914 134,507 [257]
2007 72 374 42 210 215 913 153,140 [258]
2008 80 174 19 175 195 643 128,821 [259]
2009 108 190 33 236 262 829 109,538 [260]
2010 140 201 24 213 161 739 116,670 [261]
2011 373 500 44 255 170 1,342 127,792 [262]
2012 108 220 35 259 174 796 134,734 [263]
2013 68 148 15 162 121 514 152,709 [264]
2014 32 133 18 133 88 404 160,965 [265]
2015 52 148 25 232 189 646 172,102 [266]
2016 53 128 28 220 209 638 179,419 [267]
2017 30 107 17 173 171 498 178,551[failed verification] [268]
2018 18 90 9 127 127 371 321,182 [271]
2019 23 80 10 132 113 358 375,283 [272]
2020           329 413,401 [273]

H-1B visas issued per year edit

New and initial H-1B and H-1B1 visas issued by the U.S. Department of State through consular offices[274][275]
Fiscal Year H-1B H-1B1 Total
1990 794 n/a 794
1991 51,882 n/a 51,882
1992 44,290 n/a 44,290
1993 35,818 n/a 35,818
1994 42,843 n/a 42,843
1995 51,832 n/a 51,832
1996 58,327 n/a 58,327
1997 80,547 n/a 80,547
1998 91,360 n/a 91,360
1999 116,513 n/a 116,513
2000 133,290 n/a 133,290
2001 161,643 n/a 161,643
2002 118,352 n/a 118,352
2003 107,196 n/a 107,196
2004 138,965 72 139,037
2005 124,099 275 124,374
2006 135,421 440 135,861
2007 154,053 639 154,692
2008 129,464 719 130,183
2009 110,367 621 110,988
2010 117,409 419 117,828
2011 129,134 418 129,552
2012 135,530 461 135,991
2013 153,223 571 153,794
2014 161,369 870 162,239
2015 172,748 1,051 173,799
2016 180,057 1,294 181,351
2017 179,049 1,391 180,440
2018 179,660 1,498 181,158
2019 188,123 1,724 189,847
2020 124,983 1,083 126,066
2021 61,569 1,586 63,155
2022 206,002 2,376 208,378

Top H-1B Employers by Visa Approval edit

Companies receiving H-1Bs[276][277][278]
Company Headquartered (City) Headquartered (Country) 2006
[279]
2007
[280]
2008
[281]
2009
[224]
2010
[282]
2011
[283]
2012
[284]
2013
[285]
2014
[286][287]
2015
[288]
2016
[289]
2017
[290]
Cognizant Teaneck United States 2,226 962 467 233 3,388 4,222 9,281 9,986 5,228 15,680 21,459 28,908
Tata Consultancy Services Mumbai India 3,046 797 1,539 1,740 7,469 6,258 7,149 6,339 11,295 14,697
Infosys Bangalore India 4,900 4,559 4,559 440 3,792 3,962 5,600 6,298 4,022 8,991 12,780 13,408
Wipro Bangalore India 4,002 2,567 2,678 1,964 1,521 2,736 4,304 2,644 3,246 4,803 6,819 6,529
Deloitte New York United States 1,555 525 413 563 196 559 1,668 1,491 559 3,114 6,027
Accenture Dublin Ireland 637 331 731 287 506 1,347 4,037 3,346 2,376 5,793 6,831 5,070
Tech Mahindra Pune India 2,880 1,396 1,917 219 224 1,963 1,589 1,850 2,657 3,344 4,931
Amazon Seattle United States 262 81 182 881 877 2,739 4,767
HCL Technologies Noida India 910 102 1,033 2,070 1,766 927 2,776 3,492 4,392
Microsoft Redmond United States 3,117 959 1,037 1,318 1,618 947 1,497 1,048 850 3,556 4,069
Capgemini Paris France 309 99 699 536 3,276 3,580
IBM Armonk United States 1,324 199 381 865 882 853 1,846 1,624 1,513 2,500 3,569 3,000
Ernst & Young London United Kingdom 774 302 321 481 373 1,552 2,986
Google Mountain View United States 328 248 207 211 172 383 753 728 2,517 2,758
Intel Santa Clara United States 828 369 351 723 772 700 1,873 2,625
Syntel Troy United States 416 130 129 1,161 1,149 1,080 2,286 2,119
Apple Cupertino United States 443 1,992 2,055
Larsen & Toubro Infotech Mumbai India 947 292 403 602 333 1,204 1,832 1,001 1,298 2,701 1,864
Cisco Systems San Jose United States 828 324 422 308 379 246 1,529 1,587
Facebook Menlo Park United States 1,107 1,566
IGATE (merged with Patni) Bridgewater and Bengaluru United States and India 1,391 477 296 609 164 1,260 1,157 886
Qualcomm San Diego United States 533 158 255 320 909 218 1,143
Mphasis Bangalore India 751 248 251 229 197 556 405
Oracle Corporation Redwood Shores United States 1,022 113 168 272 475 365 1,448
UST Global Aliso Viejo United States 339 416 344 475 421 1,136
PricewaterhouseCoopers London United Kingdom 591 192 449 138
Computer Sciences Corporation Falls Church United States 873
Mindtree Bangalore India 487 1,103
Top 10 H-1B Receiving Universities[276][277][279]
School H-1Bs Received 2006
New York City Public Schools 642
University of Michigan 437
University of Illinois at Chicago 434
University of Pennsylvania 432
Johns Hopkins University School of Medicine 432
University of Maryland 404
Columbia University 355
Yale University 316
Harvard University 308
Stanford University 279
Washington University in St. Louis 278
University of Pittsburgh 275
Top 10 Employers for H-1B Visas (LCA filed)[291]
Company Name Fiscal Year 2018
Ernst & Young 140,766
Cognizant 38,205
Deloitte 31,988
HCL Technologies 23,812
Apple 20,168
Qualcomm Technologies 15,612
Tata Consultancy Services 15,581
Amazon Fulfillment Services 11,644
Kforce 10,553
Mphasis Corporation 10,403

Notes edit

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References edit

  1. United States Citizenship and Immigration Service, "Characteristics of Specialty Occupation Workers (H-1B)," for FY 2004 and FY 2005, November 2006.
  2. "Microsoft Cuts 5,000 Jobs as Recession Curbs Growth (Update5)", Bloomberg, 22 Jan 2009 (Microsoft Lays off 5,000 even as they use 3,117 visas in 2006.)
  3. Bill Gates, Chairman of Microsoft, Testimony to the U.S. Senate Committee Health, Education, Labor, and Pensions. Hearing "Strengthening American Competitiveness for the 21st Century." March 7, 2007
  4. Business Week, Immigration: Google Makes Its Case, 7 Jun 2007.
  5. Business Week, Who Gets Temp Work Visas? 7 Jun 2007 (Top 200 H-1B Visa Users Chart)
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  7. Business Week, Crackdown on Indian Outsourcing Firms, 15 May 2007.
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  9. CNN, Lou Dobbs, Programmers Guild Interview & Transcript, August 26, 2005
  10. Congressional Record: Illegal Aliens Taking American Jobs, June 18, 2003 (House)
  11. Center for Immigration Studies, Backgrounder: The bottom of the pay scale, Wages for H-1B Computer Programmer's, John Milano, 2005.

Further reading edit

External links edit