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. It is the largest visa category in the United States in terms of guest worker numbers. 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.
An H-1B visa allows an individual to temporarily work in a specialty occupation in the United States.
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.
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]
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:
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.[12]
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:
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.
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 H-1B 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]
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.
The lottery process was challenged in Tenrec v. USCIS, a class action lawsuit in Oregon, but the case was decided against the plaintiffs.[25] [26]
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.[27] 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.[28] 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.[29] 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.[30]
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 Permanent 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."[31]) 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.
The LCA must be filed electronically using Form ETA 9035E.[32] Over the years, the complexity of the form increased from one page in 1997[33] to three pages in 2008, to five pages as of August 2012.[34]
By signing the LCA, the employer attests that:[35]
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.
USCIS clearly states the following concerning H-1B nonimmigrants' employment authorization.
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.
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.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.[36]
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.[37] 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.[38] A resident alien for tax purposes is taxed on all income, including income from outside the United States.[39]
The classification is determined based on the substantial presence test.[40] 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.[41] [42]
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.
Employers must generally withhold Social Security and Medicare taxes from the wages paid to employees in H-1B status.[43]
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.[44] [45] 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.[46]
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.[47]
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.[48] 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.[49] [50] [51]
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.[133] [134] [135] 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.[136] [137] [138] The executive order is intended to order federal agencies to review and propose reforms to the H-1B visa system.[139] Furthermore, these departments will "fill in the details with reports and recommendations about what the administration can legally do."[140] Trump stated that the executive would "end the theft of American prosperity," which he said had been brought on by low-wage immigrant labor.[141]
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.[142] 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.[143] [142]
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.[144] The Trump administration said they are not considering any proposal that would force H-1B visa holders to leave the country.[145]
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.[146] On June 22, 2020, President Trump extended the suspension for H-1B visa holders until December 31, 2020.[147] [148] 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".[149]
On October 28, 2020, a new rule to reform the H-1B lottery by prioritizing workers with the highest wage was approved.[150]
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.[151]
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.[152]
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.[153]
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.[154] [155] After a ten-month investigation, the U.S. Department of Labor determined that no charges should be filed against any of the firms.[156] [157]
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".[158] [159] [160] On February 25, 2016, Immigration Subcommittee Chairman Jeff Sessions held a hearing on "The Impact of "High-Skilled" Immigration on U.S. Workers.[161] [162] 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 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:
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.
Presidential candidate Bernie Sanders opposed guest worker programs[164] 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."[165] 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.[166] [167]
In 2019, USCIS unveiled a H-1B employer data hub which provides information on employee H-1B visa petitions starting from fiscal year 2009.[168]
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).[169]
In 2021, USCIS rolled out its first electronic registration system for the H-1B lottery.[170]
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.[171] [172] [173] [174] H-1B visas have led to lower prices for consumers, greater output, and improved performance by companies. A study found that H-1B visa holders have been associated with greater innovation and economic performance.
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.[175]
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."[176]
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.[177]
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.
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.[178] Others holding this view include Norman Matloff, who testified to the U.S. House Judiciary Committee Subcommittee on Immigration on the H-1B subject.[179]
Professor Matloff describes four types of labor savings for corporations and employers.[180]
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.
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.
Academic researchers have found no labor shortage in STEM, undercutting the primary reason for the H-1B visa's existence.
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.[181] In the past, he has called the IT talent shortage "imaginary,"[182] 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.[183] [184]
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."[185]
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.[186]
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.[187]
The United States General Accounting Office found in a report in 2000 that controls on the H-1B program lacked effectiveness.[188] 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.[189] 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."[189] Congress considered a bill to address the claims of shortfall[190] but in the end did not revise the program.[191]
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.[192] 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.[193] 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.[194]
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.
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.[195]
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 [196] and studies have found that H-1B workers are paid significantly less than U.S. workers.[197] [198] It is claimed that the H-1B program is primarily used as a source of cheap labor.[199] [200] [201] [202] [203] [204] [205]
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.[206]
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. 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."[207] 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.[194] According to attorney John Miano, the H-1B prevailing wage requirement is "rife" with loopholes.
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.[208]
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.[209]
Critics of the H-1B visa program say the program enables Silicon Valley to employ age discrimination against older workers.[210]
Critics contend that H-1B holders is a modern-day form of high-tech indentured servants,[211] Guest workers on H-1B visas in the IT sector have limited employer mobility compared to U.S. workers.[212] 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.[213] [214] 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.[215]
Companies have stolen the wages of H-1B workers. Labor researchers found that HCL stole $95 million from its H-1B visa workers annually.[216]
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.[217]
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.
Critics of the program take issue with American and outsourcing companies using H-1B visa workers to offshore work abroad.[218] [219] 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.[220] 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.[221] 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.[219] [222] 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. Furthermore, even though these IT outsourcing companies have a physical footprint in the United States, they hire temporary foreign guest workers instead.
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."[223]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.[224]
In FY 2009, due to the worldwide recession, applications for H-1B visas by offshore outsourcing firms were significantly lower than in previous years,[225] 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, the subsequent inability of employers to hire foreign professionals with legitimate technical and language skill combinations, and the outright replacement of American professionals already performing their job functions and being coerced to train their foreign replacements.
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.[226] [227] [228]
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.[229]
Critics contend that the H-1B visa is not being misused or abused. Instead, the program is flawd from the outset and is designed for cost-saving purposes to displace American workers and that companies are using it as intended.[230] Employers can claim anything as the prevailing wage because the Department of Labor only checks for the correctness of form completion.
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.[231] 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.[232] 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),[233] 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.
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.[234] 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.[235]
| Beneficiary Education Level | Violation Rate | % of Sample | Total Cases | ||||
|---|---|---|---|---|---|---|---|
| Bachelor's Degree | align=right | 31% | align=right | 43% | align=right | 106 | |
| Graduate Degree | align=right | 13% | align=right | 57% | align=right | 140 |
| Reported Occupations | Violation Rate | % of Sample | Total Cases | ||||
|---|---|---|---|---|---|---|---|
| Architecture, Engineering, and Surveying | align=right | 8% | align=right | 15% | align=right | 36 | |
| Mathematics and Physical Sciences | align=right | 0% | align=right | 1% | align=right | 3 | |
| Computer Professionals | align=right | 27% | align=right | 42% | align=right | 104 | |
| Life Sciences | align=right | 0% | align=right | 4% | align=right | 11 | |
| Social Sciences | align=right | 0% | align=right | <1% | align=right | 1 | |
| Medicine and Health | align=right | 10% | align=right | 4% | align=right | 10 | |
| Education | align=right | 9% | align=right | 13% | align=right | 33 | |
| Law | align=right | 0% | align=right | <1% | align=right | 1 | |
| Writing | align=right | 0% | align=right | <1% | align=right | 1 | |
| Art | align=right | 29% | align=right | 3% | align=right | 7 | |
| Accounting, Human Resources, Sales, Advertising, and Business Analysts | align=right | 42% | align=right | 11% | align=right | 26 | |
| Managerial | align=right | 33% | align=right | 4% | align=right | 9 | |
| Miscellaneous Professions | align=right | 0% | align=right | 2% | align=right | 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.[236]
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.[237]
Critics of the H-1B lottery do not like that the lottery is randomized and does not select for skill or wage.
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.[238] [239]
Selected listing of non-family preference visas where employment can be or is authorized. Temporary high skill visas
Student visas
Employment based preference (Greencard)
Various
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.[240]
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.
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.
| Initial employment approvals | Continuing employment approvals | Total | align=center | |||||||
|---|---|---|---|---|---|---|---|---|---|---|
| align=center | 2000 | align=right | 136,787 | align=right | 120,853 | align=right | 257,640 | align=center | ||
| align=center | 2001 | align=right | 201,079 | align=right | 130,127 | align=right | 331,206 | align=center | ||
| align=center | 2002 | align=right | 103,584 | align=right | 93,953 | align=right | 197,537 | align=center | ||
| align=center | 2003 | align=right | 105,314 | align=right | 112,026 | align=right | 217,340 | align=center | ||
| align=center | 2004 | align=right | 130,497 | align=right | 156,921 | align=right | 287,418 | align=center | [246] | |
| align=center | 2005 | align=right | 116,927 | align=right | 150,204 | align=right | 267,131 | align=center | [247] | |
| align=center | 2006 | align=right | 109,614 | align=right | 161,367 | align=right | 270,981 | align=center | ||
| align=center | 2007 | align=right | 120,031 | align=right | 161,413 | align=right | 281,444 | align=center | ||
| align=center | 2008 | align=right | 109,335 | align=right | 166,917 | align=right | 276,252 | align=center | ||
| align=center | 2009 | align=right | 86,300 | align=right | 127,971 | align=right | 214,271 | align=center | ||
| align=center | 2010 | align=right | 76,627 | align=right | 116,363 | align=right | 192,990 | align=center | ||
| align=center | 2011 | align=right | 106,445 | align=right | 163,208 | align=right | 269,653 | align=center | ||
| align=center | 2012 | align=right | 136,890 | align=right | 125,679 | align=right | 262,569 | align=center | [248] | |
| align=center | 2013 | align=right | 128,291 | align=right | 158,482 | align=right | 286,773 | align=center | [249] | |
| align=center | 2014 | align=right | 124,326 | align=right | 191,531 | align=right | 315,857 | align=center | [250] | |
| align=center | 2015 | align=right | 113,605 | align=right | 161,714 | align=right | 275,317 | align=center | [251] | |
| align=center | 2016 | align=right | 114,504 | align=right | 230,759 | align=right | 345,262 | align=center | [252] | |
| align=center | 2017 | align=right | 108,101 | align=right | 257,581 | align=right | 365,682 | align=center | [253] | |
| align=center | 2018 | align=right | 93,615 | align=right | 238,743 | align=right | 332,358 | align=center | [254] | |
| align=center | 2019 | align=right | 138,297 | align=right | 249,476 | align=right | 388,403 | align=center | [255] |
| 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 | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| align=center | 2000 | align=right | 554 | align=right | 288 | align=right | 158 | align=right | 1,290 | align=right | 696 | align=right | 2,986 | align=right | 130,304 | align=center | ||
| align=center | 2001 | align=right | 247 | align=right | 895 | align=right | 284 | align=right | 1,376 | align=right | 1,181 | align=right | 3,983 | align=right | 157,660 | align=center | ||
| align=center | 2002 | align=right | 169 | align=right | 806 | align=right | 189 | align=right | 849 | align=right | 642 | align=right | 2,655 | align=right | 115,697 | align=center | ||
| align=center | 2003 | align=right | 148 | align=right | 822 | align=right | 122 | align=right | 623 | align=right | 534 | align=right | 2,249 | align=right | 104,947 | align=center | ||
| align=center | 2004 | align=right | 123 | align=right | 690 | align=right | 137 | align=right | 421 | align=right | 432 | align=right | 1,803 | align=right | 137,162 | align=center | ||
| align=center | 2005 | align=right | 107 | align=right | 440 | align=right | 77 | align=right | 358 | align=right | 363 | align=right | 1,345 | align=right | 122,754 | align=center | ||
| align=center | 2006 | align=right | 96 | align=right | 392 | align=right | 54 | align=right | 195 | align=right | 177 | align=right | 914 | align=right | 134,507 | align=center | ||
| align=center | 2007 | align=right | 72 | align=right | 374 | align=right | 42 | align=right | 210 | align=right | 215 | align=right | 913 | align=right | 153,140 | align=center | ||
| align=center | 2008 | align=right | 80 | align=right | 174 | align=right | 19 | align=right | 175 | align=right | 195 | align=right | 643 | align=right | 128,821 | align=center | ||
| align=center | 2009 | align=right | 108 | align=right | 190 | align=right | 33 | align=right | 236 | align=right | 262 | align=right | 829 | align=right | 109,538 | align=center | ||
| align=center | 2010 | align=right | 140 | align=right | 201 | align=right | 24 | align=right | 213 | align=right | 161 | align=right | 739 | align=right | 116,670 | align=center | ||
| align=center | 2011 | align=right | 373 | align=right | 500 | align=right | 44 | align=right | 255 | align=right | 170 | align=right | 1,342 | align=right | 127,792 | align=center | ||
| align=center | 2012 | align=right | 108 | align=right | 220 | align=right | 35 | align=right | 259 | align=right | 174 | align=right | 796 | align=right | 134,734 | align=center | ||
| align=center | 2013 | align=right | 68 | align=right | 148 | align=right | 15 | align=right | 162 | align=right | 121 | align=right | 514 | align=right | 152,709 | align=center | ||
| align=center | 2014 | align=right | 32 | align=right | 133 | align=right | 18 | align=right | 133 | align=right | 88 | align=right | 404 | align=right | 160,965 | align=center | ||
| align=center | 2015 | align=right | 52 | align=right | 148 | align=right | 25 | align=right | 232 | align=right | 189 | align=right | 646 | align=right | 172,102 | align=center | ||
| align=center | 2016 | align=right | 53 | align=right | 128 | align=right | 28 | align=right | 220 | align=right | 209 | align=right | 638 | align=right | 179,419 | align=center | ||
| align=center | 2017 | align=right | 30 | align=right | 107 | align=right | 17 | align=right | 173 | align=right | 171 | align=right | 498 | align=right | 178,551 | align=center | ||
| align=center | 2018 | align=right | 18 | align=right | 90 | align=right | 9 | align=right | 127 | align=right | 127 | align=right | 371 | align=right | 321,182 | align=center | [256] | |
| align=center | 2019 | align=right | 23 | align=right | 80 | align=right | 10 | align=right | 132 | align=right | 113 | align=right | 358 | align=right | 375,283 | align=center | [257] | |
| align=center | 2020 | align=right | align=right | align=right | align=right | align=right | align=right | 329 | align=right | 413,401 | align=center | [258] |
| H-1B | H-1B1 | Total | ||
|---|---|---|---|---|
| 1990 | 794 | 794 | ||
| 1991 | 51,882 | 51,882 | ||
| 1992 | 44,290 | 44,290 | ||
| 1993 | 35,818 | 35,818 | ||
| 1994 | 42,843 | 42,843 | ||
| 1995 | 51,832 | 51,832 | ||
| 1996 | 58,327 | 58,327 | ||
| 1997 | 80,547 | 80,547 | ||
| 1998 | 91,360 | 91,360 | ||
| 1999 | 116,513 | 116,513 | ||
| 2000 | 133,290 | 133,290 | ||
| 2001 | 161,643 | 161,643 | ||
| 2002 | 118,352 | 118,352 | ||
| 2003 | 107,196 | 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 |
|
| H-1Bs Received 2006 | |||
| New York City Public Schools | align=right | 642 | |
| University of Michigan | align=right | 437 | |
| University of Illinois at Chicago | align=right | 434 | |
| University of Pennsylvania | align=right | 432 | |
| Johns Hopkins University School of Medicine | align=right | 432 | |
| University of Maryland | align=right | 404 | |
| Columbia University | align=right | 355 | |
| Yale University | align=right | 316 | |
| Harvard University | align=right | 308 | |
| Stanford University | align=right | 279 | |
| Washington University in St. Louis | align=right | 278 | |
| University of Pittsburgh | align=right | 275 |
| Ernst & Young | align=right | 140,766 | |
| Cognizant | align=right | 38,205 | |
| Deloitte | align=right | 31,988 | |
| HCL Technologies | align=right | 23,812 | |
| Apple | align=right | 20,168 | |
| Qualcomm Technologies | align=right | 15,612 | |
| Tata Consultancy Services | align=right | 15,581 | |
| Amazon Fulfillment Services | align=right | 11,644 | |
| Kforce | align=right | 10,553 | |
| Mphasis Corporation | align=right | 10,403 |
The total number of aliens who may be issued visas or otherwise provided nonimmigrant status during any fiscal year (beginning with fiscal year 1992)
INA Section 214 (g)(7):
Where multiple petitions are approved for one alien, that alien shall be counted only once.
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.[52] 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.[53] [54] [55] 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.[56] 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.[57]
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.[58]
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.[59] [60] The spouse would need to file Form I-765, Application for Employment Authorization, with supporting documents and the required filing fee. 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. In 2022, the U.S. government handed out 82,616 work permits for H-1B spouses.[61]
When an H-1B worker travels outside the U.S. for any reason (other than to Canada or Mexico, for 30 days or less),[62] he or she must have a valid visa stamped on his or her passport for re-entry in the United States. [63] If the worker has an expired stamp but an unexpired I-797 petition approval notice, he or she will need to appear in front of a Department of State Consular Officer at a U.S. Embassy to get a new H-1B visa stamp.
Consular Officers are instructed by the Foreign Affairs Manual per 9 FAM 402.10-9(A.a) that an approved USCIS petition is evidence that the requirements for H-1B visa classification have been met.[64] In other words, when an H-1B worker appears for stamping, consular officers are not being tasked to re-adjudicate whether their job is a specialty occupation, whether the applicant has the right qualifications on paper and whether other key requirements relating to the position are fulfilled. However, the approval of an I-129 petition by USCIS does not relieve the applicant of establishing H-1B visa eligibility: consular officers can refuse to issue a visa if they suspect, based on the interview or any documents submitted, that there has been fraud or misrepresentation in front of USCIS by either the employer or visa applicant. The Foreign Affairs Manual instructs consular officers that they "benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications". In such a case, the consular officer refuses the visa under section 221(g) of the U.S. Immigration and Nationality Act (as outlined in 9 FAM 402.10-9(A.b)) and then either asks for more evidence from the applicant or may simply need more time to make a final decision. If the officer confirms there are issues with the application, the underlying H-1B petition is sent back to USCIS for reconsideration. Upon receipt of a memo from the consular officer who refused the visa explaining the reasons for his or her decision, USCIS then either confirms the petition is valid as initially approved, or definitively revokes it. [65] [66] Consular officers themselves cannot revoke USCIS-approved petitions.
In some visa application 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.[67]
In a bid to streamline the H-1B visa renewal process, the U.S. Department of State launched a limited Domestic Visa Renewal Pilot Program from January 29 to April 1, 2024. This initiative allowed a select group of H-1B visa holders who previously received their visas from specific consulates in Canada or India to renew their visas domestically, bypassing the need for an international trip. The program, capped at 20,000 participants, required applicants to secure a slot in one of the five weekly allotments of 4,000 filing slots. It was specifically designed for H-1B renewals and targeted individuals not subject to reciprocity fees or in-person interview waivers. It excluded those whose previous issued H-1B visa had a "Clearance Received" annotation (indicating a Security Advisory Opinion was determined as necessary before making a decision on issuance).[68]
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.[69] The H-1B visa must be stamped in the passport and be valid for at least six months. The passport needs to be valid for at least six months after entering Costa Rica.
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.[70]
The process of getting a H-1B visa has three stages:
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.[73] 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. If the 15-calendar-day window is not satisfied, then the Premium Processing Fee will be refunded. In the past, USCIS suspended, then resumed the premium processing program.[74] [75] [76] [77] [78]
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.[79] 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."[80] 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.[81] [82] 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.
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.[83] [84]
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.[85] The act also gave investigative authority to the United States Department of Labor.
On October 17, 2000, the American Competitiveness in the 21st Century Act was signed by President Bill Clinton.[86] 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.[87]
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.[88] 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.[89]
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.[90] 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.
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 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.[91] 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.
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.[92]
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.[93] The exemption does not apply to any employment to be performed outside of Guam or the Commonwealth of the Northern Mariana Islands.[94]
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.[95] 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.[96]
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. 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. Though, India in general has been welcoming this change and requirement since 2015.[97] 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.
The United States Citizenship and Immigration Services has updated and issued new rules regarding the H-1B visa in the past decade.
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]
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.
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".
Third-party placement firms and staffing firms do not qualify for H-1B status because they fail the control test.[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]
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.[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.[117] The rule also reduces disincentives for H-1B workers to leave the United States, which disrupts the United States businesses employing these workers.[118]
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]
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]
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]
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. The spouse's application must include evidence of the abuse.
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. 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. If approved, the authorization is valid for two years.
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]