The H-1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to employ foreign guest workers employed 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 3 years, extendible to 6. An exception to maximum length of stay applies in certain circumstances: (i) 1 year extensions if a labor certification application has been filed and is pending for at least 365 days; and (ii) 3 year extensions if an I-140 has been approved.
Congressional Yearly Numerical Cap
There is an annual cap on H-1B admissions of 65,000 workers per fiscal year. The ceiling set by Congress was 115,000 in both FY1999 and FY2000, 107,500 in FY2001, and back to 65,000 in FY2002. The cap was raised by 297,500 over three years, FY2000-FY2002. 80,000 new H-1B visas were added for FY2000, 87,500 visas for FY2001, and 130,000 visas for FY2002. In addition, excluded from the ceiling are all H-1B nonimmigrants who work for universities and nonprofit research facilities. 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.
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. Workers
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.
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 [Strategic Plan http://www.dol.gov/_sec/stratplan/strat_plan_2006-2011.pdf], Fiscal Years 2006-2011 (pg. 35) states: "...H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker."
The [Federal Register http://www.dol.gov/esa/regs/fedreg/final/2006005740.pdf], 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, 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. Other factors, such 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. 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."[2] The approval process for these employer attestations simply amounts to the checking the form is filled out correctly.
[edit] Taxation status of H-1B workers
H-1B workers are legally required to pay the same taxes as any other U.S. resident, including Social Security and Medicare.[3] Almost any person who spends more than 183 days in the U.S. in a calendar year is a tax resident and is required to pay U.S. taxes on their worldwide income. (The exceptions to this rule are very few in number; they include the case of students on F-1, foreign diplomats, G-4 visa holders working for international organizations, and people who would like to leave the U.S. but are prevented from doing so by a medical problem.) From the IRS perspective, it doesn't matter if that income is paid in the U.S. or elsewhere. If an H-1B worker is given a living allowance, it is treated the same by the IRS as any other U.S. resident. However since an H-1B visa is only valid for 6 years and Social Security benefit eligibility typically requires 10 years of work, most H-1B visa holders will not be able to make use of the Social Security benefits that they are contributing to.
H-1B employment
According to the USCIS, "H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer."[4] Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made.
As the rules are written, there is no requirement that an American be sought to fill a position, nor given preference in layoffs unless the company is "H-1B dependent", i.e. 15 percent or more of its global workforce consists of H-1Bs earning less than $60,000 per year, exempting those who hold master's degrees. Only about one percent of H-1B employers are deemed "H-1B dependent," and even then the employer is only required to "attest" that he was not able to find an American. (The true level of H-1B dependence is most likely higher since the current rules for measuring H-1B dependence are applied across all occupations within a company including administrative, sales, marketing, and other technical positions, rather than specifically to the technology areas within a company for which an H-1B is granted.)
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 6 year duration of the H-1B visa:
- If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to his 5th year anniversary of having the H-1B visa, he is entitled to renew his H-1B visa in 1 year increments until a decision has been rendered on his application for permanent residence.
- If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to his priority date not being current, he may be entitled to a 3 year extension of his H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000.[5]
H-1B and legal immigration
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India, the Philippines and China) to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments to continue to be in legal status while their green card application is in process.
Quotas and changes in quotas
The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. 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. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and colleges (note: contrary to popular belief, non-profit organizations are not automatically exempt, but may be so if affiliated with a university or college). In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.
For FY 2007, beginning on October 1, 2006, the entire quota of visas for the year was exhausted within a span of less than 2 months on May 26, 2006[6], well before the beginning of the financial year concerned. The additional 20,000 Advanced Degree H-1B visas were exhausted on July 26. For FY 2008, the entire quota was exhausted before the end of the first day on which applications were accepted, April 2[7]. Under USCIS rules, the 123,480 petitions received on April 2 and April 3 that were subject to the cap were pooled, and then 65,000 of these were selected at random for further processing[8]. The additional 20,000 Advanced Degree H-1B visas for FY 2008 was exhausted on April 30.
In its annual report on H-1B visas released in November 2006, USCIS stated that it approved 131,000 H-1B visas in FY 2004 and 117,000 in FY 2005. The inflation in numbers is because H-1B visas granted to employees of not for profit organizations is not numerically capped.
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. [10] Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes fashion models.
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. Department of Labor.
Spouses cannot work
H-1B's spouse who generally come on H-4 (dependent visa) cannot work in the United States. This can cause stress to qualified spouses of the H-1B holders. Some of them wait in queue for years to get their own H-1Bs. In contrast, L-1 dependent visa holders (L-2) can work, if their EAD is approved by USCIS, This is a lengthy process and consumes a lot of time and money. Fee has gone up multiple folds. Well Educated Resources are without Job for a long time.
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. and did not exhaust their entire six year term can choose to be re-admitted for “remainder” of initial six-year period without being subject to the H-1B cap. The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.
The USCIS has also announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.
Similar programs
In addition to H-1B visas, there are a variety of other visa categories which 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-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders. For Canadian residents, a special L visa category is available.
TN-1 visas are part of the NAFTA treaty, and are issued to Canadian and Mexican citizens.[21] Formerly, they were also issued to third country citizens who had obtained permanent residency in Canada.[citation needed] This procedure is called "touching base".[citation needed] TN visas are only available to workers who fall into one of a pre-set list of occupations determined by the NAFTA treaty. There are specific eligibility requirements for the TN Visa.
H-2B: The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status
Alternatives to H-1B Visa:
Dependents of H-1B visa holders
H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN). An H4 Visa holder may attend school, obtain a driver's license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver's license in cases where driver's licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required
