H1b Visa
employers to temporarily employ foreign workers in specialty occupations.
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 including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.
H-1B work-authorization is strictly limited to employment by the sponsoring employer.
Duration of stay
The duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:
one-year extensions if a labour certification application has been filed and is pending for at least 365 days; and
three-year extensions if an I-140 has been approved.
Congressional yearly numerical cap
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status.
(The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institution may be exempt from the cap.
Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S.
universities from the cap on H-1B visas.
The Department of Homeland Security approved about 132,000 H-1B visas in 2004 and 117,000 in 2005.
Visa renewals do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.
Employer attestations to protect 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.
The Department of Labor states that the H-1B law doesn't require employers to seek local talent before recruiting abroad for their US job openings, except in limited circumstances when the employer is considered H-1B dependent:
The DOL's , Fiscal Years 2006-2011 (pg.
H-1B workers may be hired even when a qualified U.S. worker can be displaced from the job in favor of the foreign worker."
The , dated June 30, 2006, Section II, paragraph 4, "the statute does not require employers...to demonstrate that there are no available US workers or to test the labor market for US workers as required under the permanent labor certification program."
Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater.
By signing the LCA (Labor Condition Application), the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout.
Prior to 2005, the law required H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location or that which the employers pays to similarly situated employees. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use.
Employers using this system classify most workers at the lowest skill level. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.
The law specifically limits the approval process of LCAs to checking for "obvious errors and inaccuracies." The approval process for these employer attestations simply amounts to the checking the form is filled out correctly.
H-1B fees earmarked for 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 education and train U.S. workers.
Income taxation status of H-1B workers
The taxation of income for H-1B employees depends on their tax residency: whether they are categorized as Resident Aliens or Non Resident Aliens for tax purposes.
The tax residency can be determined based on the "substantial presence test".
If the substantial presence test indicates that the H-1B visa holder is a resident, then income taxation is like any other US person and may be filed using Form 1040 and the necessary schedules.
Otherwise the visa holder must file as a non-resident alien using tax form 1040NR; he or she may claim benefit from Tax Treaties if they exist between the US and the visa holder's country of citizenship.
Persons who are in their first year within the US 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" is described in IRS Publication 519 and can only be made once in a person's lifetime.
A spouse, regardless of visa status, must have a valid ITIN or Social Security Number in order to be included on a joint tax return with the H-1B holder.
H-1B employment
According to the USCIS, "H-1B aliens may only work for the petitioning U.S.
employer, but must have a Form I-129 petition approved by each employer." that is all about h1 visa
U.S. 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 six-year duration of the H-1B visa:
If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their 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 their priority date not being current, they may be entitled to a 3 year extension of their H-1B visa. 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, the Philippines and China) to obtain their green cards.
Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). 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. 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. During the years the quota was 195,000, it was never reached.
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 U.S.
For FY 2008, the entire quota was exhausted before the end of the first day on which applications were accepted, April 2. The inflation in numbers is because H-1B visas can be exempt from the caps if the employer is a University or Research Lab.
For FY 2009, USCIS announced on April 8, 2008 that the entire quota for visas for the year has been reached, for both 20,000 Advanced and the 65,000 quota.
USCIS would complete initial data entry for all filing received during April 1 to April 7, 2008 before running the lottery .
H-1B-dependent employers
Recent H-1B legislation requires certain employers, called H-1B dependent employers to advertise positions in the USA before petitioning to employ H-1B workers for those positions.
For firms of 50 employees, an H-1B dependent employer is defined as having more than 15% of their employees in H-1B status. Smaller firms are allowed to have a higher percentage of H-1B employees before becoming 'dependent'.
Criticisms of the program
The H-1B program has caused a number of criticisms.
Nobel Prize winning economist Milton Friedman called the program a corporate subsidy, as quoted in a 2002 Article in computerworld.
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. The House leadership had it removed before the bill came to a vote.
Critics of the H-1b program have suggested that because demand for US immigration rights is so huge, these provisions are difficult to enforce
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.
It can 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. 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.
However the sources of these studies are normally conducted and reported by special interest groups that oppose the H-1B program. However, studies show that the majority of employers do pay prevailing wages and the law provides stiff penalties for abusers.
DOL has split the prevailing wage into four levels, with Level One representing about the 17th percentile of wage average Americans earn - and about 80% of LCA are filed at this 17th percentile level.
This four level prevailing wage can be obtained the DOL website, and is generally far lower than average wages.
The "prevailing wage" stipulation is allegedly vague and thus easy to manipulate, resulting in employers underpaying visa workers. The US governments OES office's data indicates that 90% of H-1B IT wages were below the median US wage for the same occupation.
Although immigration generally requires short & long-term visitors to disavow any ambition to seek the green card (permanent residency), H-1B visa holders are an important exception, in that the H-1B is legally acknowledged as a possible step towards a green card under what is called the doctrine of dual intent.
Some visa holders work offsite for major US corporation, sending and coordinating work back in their homeland. They work at large corporations that require someone in-house to answer questions and deal with software bugs.
Corporations have been using this service for a few years, with varied success. The resulting software usually falls short of satisfying the U.S specifications and can be more expensive in time and money than having the software developed on-site.
H-1B visa holders may be sponsored for their green cards by their employers through an Application for Alien Labor Certification, filed with the U.S.
In the past, the sponsorship process has taken several years, and for much of that time the H-1B visa holder was unable to change jobs without losing their place in line for the green card. This created an element of enforced loyalty to an employer by an H-1B visa holder.
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. government began an investigation into Sun Microsystems' hiring practices after an ex-employee, Guy Santiglia, filed complaints with the U.S.
law states that employers who hire foreign workers must "attest" (though for H-1B, no formal proof of any kind is required) that there are no domestic workers who could fill their positions. Contrary wise, it is claimed that a requirement to show specific skills (generally measured in years of experience) would prevent employers from exercising judgement based on their interview performance, fit for the team, or other legitimate work criteria, and therefore a requirement to justify each hiring decision to a government agency would have the de-facto effect of discouraging the hiring of H1B workers even in cases where American candidates are not equally qualified for the position.
Criticisms by H-1B holders
Payment of out-of-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.
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. Some of them wait in queue for years to get their own H-1Bs.
H-1B workers can be disciplined at any time, by being laid off: the worker then has to leave U.S. citizen or green card holder can simply quit his or her job, whereas a H-1B's right to remain in the U.S.
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.
Theoretically, the LCA process appears to offer protection to both U.S.
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. 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 widespread retrogression in priority dates.
Thus, they may well still be stuck with their sponsoring employer for many years. Senate passed immigration bill 2611 which contained several increases in the number of H-1B visas, including:
raising the base quota from 65,000 to 115,000,
Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it,
Adding 6,800 visas for trade agreements separate from the base quota,
Adding 20,000 visas for those with foreign graduate degrees,
Raising from 20,000 to unlimited the number of visas for those with U.S.
graduate degrees, and
Making visas to non-profit organizations exempt from the quota.
However, as the House refused to consider the measure, it died in conference and no H-1B increase was approved in time for the elections.
The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B quota limits, individuals who spent one year outside of U.S. The additional fee was to be used for training and scholarship programs and in addition to other existing fees.
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. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent.
There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status
Alternatives to H-1B visa:
Green Card for medical doctors and physicians.
Pre-requisite: National Interest Waiver.
Alternatively, a Medical Doctor or Physican may enter the U.S. as long as the H-1B visa holder remains in legal status.
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.
H-1B demographics
Of all Computer Systems Analysts and programmers on H-1B visas in the USA, 74 percent were from Asia. This large scale migration of Asian IT professionals to the United States has been cited as a central cause of the quick emergence of the offshore outsourcing industry.
Further information: IT Body Shops
Usage of H-1B by outsourcing firms
In 2006, these firms collectively were issued 19,512 of the 65,000 H-1B visas granted, with 4 outsourcing firms among the top 5 receivers of H-1B visas.
Among the top of the list were some of the most well known outsourcing firms: Infosys, Satyam Computer Services, Tata Consultancy Services, and Wipro Technologies.