The H-1B is a visa in the United States under the Immigration and Citizenship Act, section 101 (a) (15) (H) which allows US employers to employ foreign workers in special jobs. If a foreign worker in H-1B status stops or is dismissed from the sponsoring employer, the employee must file an application and be given a status change, look for another employer (depending on the application for adjustment of status and/or visa change), or leave the United States. Effective January 17, 2017, the United States Citizenship and Immigration Services modify the rules to allow a grace period of up to 60 days but in practice as long as the green card application is waiting for them to be allowed to stay. By 2015, there are 348,669 applicants for H-1B filed for which 275,317 are approved.
The rules define "special work" as requiring theoretical and practical applications of a body of highly specialized knowledge in the field of human endeavor including but not limited to biotechnology, chemistry, computing, architecture, engineering, statistics, physics, journalism, medicine and health: dentists, nurses, physiotherapists, etc., economics, education, research, law, accounting, business specialization, technical writing, theology, and the arts, and require the attainment of a bachelor's degree or equivalent as a minimum (with the exception of fashion models, "has a reward and a special ability"). Likewise, foreign workers must have at least a university degree or equivalent and state license, if required to practice in that field. H-1B work-authorization is severely limited to work by sponsoring employers.
On March 3, 2017, USCIS announced on their website that from April 3, 2017 they will temporarily suspend premium processing for all H-1B visa petitions until further notice. On 3 October 2017, premium processing for all H-1B visa petitions continued. On April 18, 2017, President Trump signed the "Buy America, the American Employment" Executive Order which establishes broad policy intentions directing federal agencies to propose reform of the H-1B visa system that currently allows for extended residence for temporary skilled workers allowing the transition to become citizenship without the scope of federal policies or regulations or quotas that balance the growing employment needs of the American population. However, Trump's administration disclosed they did not consider a proposal that would force the H-1B visa holders to leave the country and would gradually focus on improving the quality of life of current visa holders for the services they provide to the economy in their time. period.
Video H-1B visa
Program structure
Duration of stay
The duration of stay is three years, can be extended to six years. Exceptions for maximum stay apply under certain circumstances: If the visa holder has applied for I-140 immigrant or labor certification before the fifth anniversary they have H-1B visa, they are entitled to renew their H-1B visa within one year of accrual until the decision has been granted on the application they are for permanent residence. This is supported by the Immigration and Citizenship Act 106 (a).
Increases in time less than three years are sometimes applied to certain citizens. For example, during Melania Trump time as a H-1B visa holder, he is limited to a one-year increase, which is the maximum allowable time per H-1B visa for Slovenians. Melania Trump has been a legitimate citizen since 2001.
Holders of H-1B who wish to continue working in the US after six years but who have not obtained permanent residence status must remain outside the US for one year before applying for another H-1B visa if they are not eligible for one of the mentioned exceptions The above allows for extensions beyond six years. Although the stay period is limited, there is no requirement that the individual remains for each period in the visa work it was originally issued for. This is known as portability or H-1B transfer, provided that the new employer is sponsoring another H-1B visa, which may or may not be subject to quotas. Under current law, the H-1B visa does not have a specified time limit in case employer-employee relations no longer exists.
Congressional cap and annual clearance per year
The Immigration Act of 1990 limits up to 65,000 the number of foreign citizens who can be granted a visa or grant H-1B status every fiscal year (TA). An additional 20,000 H-1B is available for foreign nationals holding a master's degree or higher than a US university. In addition, it is excluded from the ceiling of all non-immigrant H-1Bs working at (but not necessarily for) universities, non-profit research facilities associated with universities, and government research facilities. Universities may employ unlimited number of foreign workers if they do not qualify for H-1B as cap-exempt . It also means that contractors who work at but not directly employed by these agencies may also be released of the hat. However, employers should demonstrate 1) most of the worker's duties will be performed at qualifying institutions, organizations or entities and 2) job assignments directly and furthermore important goals, mission objectives or functions of qualifying institutions, organizations or entities. The Free Trade Agreement carries 1,400 H-1B1 visas for Chilean citizens and 5,400 H-1B1 visas for Singaporean nationals. However, if these provided visas are not used, then they are available in the next fiscal year for applicants from other countries. Due to these unlimited exceptions and scrolling, the number of H-1B visas issued annually is significantly more than 65,000 caps, with 117,828 been issued in FY2010, 129,552 on FY2011, and 135,991 in FY2012. In previous years, the hat was not always achieved. For example, in FY1996, the INS (now known as USCIS) announced on August 20, 1996 that preliminary reports indicate that the cap has been exceeded, and the H-1B application processing is suspended. However, when more accurate figures became available on September 6, it became clear the lid had not been reached, and processing continued for the remainder of the fiscal year.
The US Citizenship and Immigration Services began accepting applications on the first business day of April for a visa calculated against the fiscal year beginning in October. For example, the H-1B visa application calculated against the cap of FY 2013 is filed starting Monday, April 2, 2012. USCIS accepts an H-1B visa application no later than 6 months before the requested start date. Beneficiaries who are not subject to the annual seal are those who currently hold the cap-subject status of H-1B or have held cap-subject status of H-1B at some point in six year last year.
Lottery
Every year, generally on April 1, H-1B season begins for the next federal fiscal year; Job authorization was given on 1 October. Due to a pre-employment window limit of six months, the first business day of April is the earliest that the applicant can legally apply for the H-1B subject-item distribution next year. "Close box" H-1B is depicted on the envelope label, preferably in red ink, with "Ordinary Hat" for bachelor's degree, "C/S Cap" for H-1B1 agreement cases and "US Master" for US Master degree or exclusion higher. USCIS publishes a memo when a sufficient cap-subject application has been received, indicating the close of the cap-subject application season, the associated random selection process is often referred to as the H-1B lottery. Those with a US master exemption have two opportunities to be selected in the lottery: first, the lottery is held to grant 20,000 visas available to master degree holders, and those who are not elected are then included in a regular lottery for 65,000 other visas.. Those who are not US masters are only included in the second regular lottery.
Pro-H-1B experts claim that early closing, and the number of applications received (172,500 in Fiscal Year 2015), is an indication of job and advocacy requests that increase the 65,000 bachelor's degree. David North, from the Immigration Studies Center, claims that unlike other immigration categories, the H-1B submission fee, for non-randomly selected applications, is returned to employers wishing to work. However, unselected apps are only returned unopened to the requester, with no money changing hands or being returned.
Computerworld and The New York Times have reported on the extraordinary part of the H-1B visa received by a company specializing in offshore outsourcing, the subsequent inability of employers to recruit foreign professionals. with a combination of legitimate technical and linguistic skills, and direct replacement of American professionals who already perform their job functions and are forced to train their foreign surrogates.
The United States Chamber of Commerce maintains a list of years when a random selection process (lottery) takes place.
The lottery process is challenged at Tenrec v. USCIS , a class action lawsuit in Oregon, but the case was adjudicated against the plaintiff.
The tax status of a person with H-1B status
Tax income for an individual with H-1B status depends on whether they are categorized as non-resident aliens or foreign residents for tax purposes. Non-resident aliens for tax purposes are taxable only on income that is effectively connected with trade or business in the United States and a fixed, predetermined, annual, or periodic source of US income. Foreign residents for tax purposes are taxed on all income, including income from outside the United States.
Classification is determined based on substantial attendance tests. If a substantial attendance test indicates that the individual is a resident, the income tax is like any other US person and may be filed using Form 1040 and the required schedule. Otherwise, the individual must file as a non-resident alien using Form 1040NR or Form 1040NR-EZ; individuals may claim benefits from existing tax treaties between the United States and individual countries of citizenship.
A person in the first year in the US may choose to be considered a resident for tax purposes for a full year, and must pay taxes on their worldwide income for that year. This first year's choice can only be done once in a person's lifetime. The spouse, regardless of the status of the visa, must include an Individual Taxpayer Identification Number or Social Security Number applicable to a joint tax return with an individual under H-1B status.
The tax filing rules for an individual in H-1B status may be complex, depending on the individual situation. A tax professional who has knowledge of regulations for foreigners may be consulted.
Social Security and Medicare Tax
Employees in H-1B status should generally have Social Security and Medicare taxes withheld from their wages. Like US citizens, they may be eligible to receive Social Security benefits even if they leave the United States, provided they have paid Social Income tax for at least 10 years. Furthermore, the US has bilateral agreements with some countries to ensure that the time paid into the US Social Security system, even if it is less than 10 years, is calculated in comparable systems of foreign countries and vice versa.
H-1B and path to permanent residence
Although the H-1B visa is a non-immigrant visa, this is one of several temporary visa categories known as double intentions , meaning that H-1B holders can legitimately have immigration purposes (apply and get a card green) while still a H-1B visa holder. However, this is only permitted in special cases by USCIS (EB-1 visa). But since the IT system boom the system has been abused and is often the route to Permanen residence. Effectively, non-immigrant visas are based on immigrant visas - stepping stones for permanent residence or citizenship; companies often support it for cheap labor with an agreement to support employees with a Green card petition.
In the past, the work-based green-card process used to take only a few years, was less than the duration of the H-1B visa itself because the need to maintain a foreign address for a non-immigrant classification was removed in the Immigration Act from 1990. Trump Administration expressed their displeasure with the H-1B visa system game and has proclaimed to restructure immigration/permanent residence with an efficient system such as a point-based immigration system. In response to the misuse of H-1B visas, groups such as Progressive for Immigration Reform advertise opposition posters throughout San Francisco's Bay Area Rapid Transit (BART) and fast train stations.
Dependent H-1B visa holder
H-1B visa holders may bring close family members (spouses and children under 21) to the United States under the H-4 visa category as dependents.
A H-4 Visa holder may remain in the US as long as the H-1B visa holders have legal status. An H-4 visa holder is allowed to go to school, apply for a driver's license, and open a bank account in the United States.
Effective May 26, 2015, the US Citizenship and Immigration Services allows several couples holding H-1B visas to apply for eligibility to work in the United States. Couples must complete Form I-765, Application for Job Authorization, with supporting documents and required filing fees. The couple is permitted to work in the United States only after Form I-765 is approved and the pair receives a Work Authorization Document card.
Administration process
When an H-1B worker travels outside the US for any reason (other than to Canada or Mexico), he must have a valid visa stamped on his passport to re-enter in the United States. If the worker has an expired stamp but an i-797 request that has not yet run out, he must appear in the US Embassy to get a new stamp. In some cases, H-1B workers may be required to undergo "administrative processing", which involves additional background checks of various types. Under current rules, this check should take ten days or less, but in some cases, it has been going on for years.
Complications for entrepreneurs and consultants
EB-5 visa program US immigration system allows foreign businessmen to apply for a green card if they make enough investment in a commercial company and intend to create 10 or more jobs in the United States. Dissatisfied with this mechanism, and taking advantage of the lack of a hat for the H-1B visa issued to educational institutions, the University of Massachusetts initiated a program in 2014 that allows employers to find US companies while meeting visa requirements by teaching and mentoring on campus, with universities as sponsors. Similarly, the self-employed consultant does not have a visa that will allow them to enter the country and do the work independently for an indefinite period of time (though, note that B-1 visas will allow a temporary trip to the US for consultation for a certain period) so consulting firms have been established for the purpose of sponsoring employees on H-1B visas to enable them to do work for clients, with companies sharing the resulting profits.
Maps H-1B visa
Application process
The process of obtaining an H-1B visa has three stages:
- The company file with the United States Department of Labor, an Employment Conditions Application (LCA) for employees, makes relevant attachments, including wage approval (which indicates that wages are at least equal to the wages and prevailing wages paid to others in the company in the same position) and working conditions.
- With an approved LCA, the company filed Form I-129 (Petition for Non-Immigrant Workers) requesting the H-1B classification for the worker. This should be accompanied by the necessary documents and support costs.
- After Form I-129 is approved, workers may commence work under the H-1B classification on or after the indicated commencement date, if it is physically present in the United States in the current status of that time. If the employee is outside the United States, he may use the approved Form I-129 and supporting documents to apply for an H-1B visa. With an H-1B visa, workers may present themselves at US admission ports seeking admission to the United States, and obtain Form I-94 to enter the United States. (Employees who start work on H-1B status without H-1B visa because they are already in the United States still need to get an H-1B visa if they ever leave and want to re-enter the United States while in H-1B status.)
STEM OPT Extension and gap-close extension
On April 2, 2008, US Department of Homeland Security Secretary Michael Chertoff announced a 17-month extension for pests for students in the STEM qualification field. The OPT extension is included in the rule change which is usually referred to as the H-1B Cap-Gap Rule. Pest Extensions only benefit STEM foreign students (Science, Technology, Engineering, or Mathematics) and are not available to foreign students from other disciplines. A 17-month work-authorization extension allows foreign STEM students to work up to 29 months in total on a student visa, allowing STEM students several years to obtain H-1B visas. To be eligible for a 12-month work permit, a bachelor's degree in any field of study is valid. For a 17 month extension of the pest, a student must have received a STEM degree in one of the approved majors listed on the USCIS website. The STEM extension can be combined with cap-gap extension.
In 2014, a federal court rejected the government's move to dismiss the Washington Workers Technology Alliance (Washtech) and three other plaintiffs cases against the extension of OPT STEM. Judge Huvelle noted that the plaintiff had stood up due to increased competition in their field, that the participation of pests had ballooned from 28,500 in 2008 to 123,000 and that while students worked under the pest on student visas, employers were not required to pay Social Security and Medicare contributions, or wages in effect.
Evolution of the program
Changes to the legal and administrative rules
American Competitiveness in Act Twenty-First Year 2000
American Competitiveness in the Twenty-First Act of the Year 2000 (AC21) and the US Department of Manpower's PERM system for labor certification remove most of the previously claimed arguments for H-1B as servants who are bound during the green card process. With PERM, labor certification processing time is now about 9 months (as of March 2010).
Because of AC21, H-1B employees are free to change jobs if they have a delayed I-485 application for six months and I-140 approved, and if the position they move is substantially proportional to their current position. In some cases, if the labor certification is withdrawn and replaced by a PERM application, processing time increases, but the person also loses a favorable priority date. In that case, employers' incentives to try to lock H-1B employees into jobs by offering reduced green cards, because employers bear the high legal costs and costs associated with labor certification and I-140 processing, but -1B employees are still free to change jobs.
However, many people are not eligible to file I-485 at this time due to the widespread setbacks on priority dates. As such, they may still be stuck with their sponsoring employers for years. There are also many old labor certification cases pending under the pre-PERM rule.
Consolidated Natural Resource Act of 2008
The 2008 Consolidated Natural Resource Act, which, inter alia, centralizes immigration at the Commonwealth of Northern Mariana Islands (CNMI), stipulates that during the transition period, numerical restrictions do not apply to eligible workers in the H visa category on CNMI and Guam.
American Recovery and Reinvestment Act in 2009
On February 17, 2009, President Obama signed the laws of the American Recovery and Reinvestment Act of 2009 ("stimulus bill"), Public Law 111-5. Section 1661 of ARRA incorporates the American Labor Act (EAWA) by Senators Sanders (I-Vt.) And Grassley (R-Iowa) to restrict certain banks and other financial institutions from employing H-1B workers unless they have offered positions for better or better qualified US workers, and to prevent banks hiring H-1B workers in their jobs has laid off US workers. These restrictions include:
- The employer must, before applying for H-1B, take measures in good faith to recruit US workers for positions sought by H-1B workers, offering wages at least as high as what the law requires H-1B workers. The employer must also prove that, in connection with this recruitment, he has offered the work to any US worker who submits an application that has the same or better qualifications for that position.
- The employer shall not be laid off, and shall not be dismissed, the US worker in a work essentially equivalent to the position of H-1B in the field of employment desired by H-1B workers in the period beginning 90 days prior to the H-1B petition and ending 90 days after submission.
USCIS policy change
After completing a policy review, USCIS clarified that individuals who spend more than one year outside the US and do not spend their entire six-year term may choose to be reimbursed for the first six-year "remainder" period without being subject to the H-1B cap.
After completing a policy review, USCIS clarified that, "Any time spent in H-4 status will not count towards the maximum six-year acceptance period applicable to H-1B aliens."
USCIS issued a memorandum dated January 8, 2010, stating that there must be a clear "employer employee relationship" between the applicant (employer) and the beneficiary (the visa holder). This underscores what the employer should do to comply and put forward the documentation requirements to support the company's statement that there is a valid relationship.
The memorandum gives three clear examples of what is considered a valid "employer employee relationship":
- fashion model
- a computer software engineer working outside the site/in place
- company or contractor working on products with DOD
In the case of software engineers, the applicant (the employer) must agree to do (some) of the following:
- Keep track of beneficiaries on and off the site
- Maintain such monitoring through calls, reports, or visits
- Have the right to control daily work if such controls are required
- Provide tools for jobs
- Hire, pay, and have the ability to fire heirs
- Evaluate work products and conduct progress/performance reviews
- Claim them for tax purposes
- Provide (some types of) employee benefits
- Use exclusive information to do the work
- Produce a business-related end product
- Have the ability to control the ways and means by which the worker completes the task
It further states that "the common law is flexible" in the way weigh these factors.
2017 proposed reform
In 2017, the US Congress considers more than double the "minimum wage" required from holders of H-1B of US $ 60,000 established in 1989 and has not changed since then. The High Integrity and Justice Law, introduced by Congressman Zoe Lofgren of California, will raise the minimum wage holders of H-1B to US $ 130,000. The action was criticized in the Indian press to confirm "the worst fears of IT companies [India]" behind the reforms discussed during the 2016 Presidential election by both major candidates, and to cause a 5% drop in the BSE SENSEX index. Lofgren's office described it as a move to "curb the abuse of outsourcing" by citing unfair technological recruitment practices by companies including Disney and the University of California San Francisco.
On April 18, 2017, President Trump signed an executive order directing federal agencies to implement the "Buy American, American Hire" strategy.
At a press conference, the Department of Labor, the Department of Justice, the Department of Homeland Security, and the State Department said that an executive order would direct federal agencies to adopt a new system that favored higher and more skilled applicants. The executive order is the first initiative in response to the key promises made by Trump during his presidential campaign to promote "Buy American, American Lease" policy. The executive order is intended to order federal agencies to review and propose reform of the H-1B visa system. Through the executive order, Trump expressed the widespread policy of economic nationalism without having to go through Congress. The Secretary of Labor, the Attorney General, the Minister of Homeland Security, and the Secretary of State will "fill in the details with reports and recommendations on what the government can legally do." Trump said that executives would "end the theft of American prosperity", which he says has been brought by low-wage immigrant workers.
On January 9, 2018, the US Citizenship and Immigration Services said that they did not consider any proposals that would force the H-1B visa holders to leave the United States during the green-card process. The US Citizenship and Immigration Service says that employers may request an extension with a one-year increase under section 106 (a) - (b) of American Competitiveness in the 21st Century Act instead.
Protection for US workers
Application of Employment Conditions
The US Department of Labor (DOL) is responsible for ensuring that foreign workers do not replace or negatively affect the wages or working conditions of US workers. For any H-1B application submitted to USCIS, a Working Conditions Application (LCA) must be included (not to be confused with labor certification), which is certified by the US Department of Labor. The LCA is designed to ensure that wages offered to non-immigrant workers meet or exceed "applicable wages" in the employment field. ("Immigration law has a number of highly technical terms that may not mean the same for average readers.") The LCA also contains a section of endorsement designed to prevent the program from being used to import foreign workers to stop strikes or replace US Workers.
Although the employer is not required to advertise a position before employing a non-immigrant H-1B in accordance with the approval of the H-1B visa, the employer must notify the employee's representatives of the Employment Conditions Application (LCA) - or if no such representative, the employer must publish LCA in the workplace and the employer's office. Under the rules, LCA is a matter of public record. Corporations employing H-1B workers are required to make this record available to any member of the community requesting to see it. Copies of relevant records are also available from various websites, including the Department of Labor.
Form History Employment Application Form
LCA must be submitted electronically using Form ETA 9035E. Over the years, the complexity of the form increased from one page in 1997 to three pages in 2008, to five pages as of August 2012.
Endorsement of employer
By signing the LCA, the company declares that:
- Employers pay the same non-immigrant H-1B wages paid to all other individuals with similar experience and qualifications for a particular job, or wages applicable to occupation in employment, whichever is higher.
- The use of non-immigrant H-1B does not affect the working conditions of workers who work together.
- On the date the application is signed and submitted, there are no strikes, suspensions or cessation of employment during labor disputes in occupation where non-immigrant H-1Bs will be employed in the workplace. If such a strike or locking occurs after this application has been submitted, the employer must notify the DOL (DUT) Employment and Training Administration (ETA) within three days, and the application is not used to support the application with USCIS (formerly known as INS) for H - 1B non-immigrant to work in the same workplace at work until ETA determines a strike or lockout expires.
- A copy of this application has been, or will be, reserved for any non-immigrant H-1B used in accordance with this application, and, from the date of application, notice of this application has been granted to workers hired at work where non H-1B -tigrans will be employed:
- This archiving notification has been provided to bid on representatives of workers in occupation where non-immigrant H-1Bs will be employed; or
- There is no such bargain representation; therefore, this archiving notification has been posted and has been, or will remain, posted for 10 days in at least two prominent locations where a non-immigrant H-1B will be employed.
The law requires H-1B workers to be paid higher than wages applicable to the same job and geographic location, or equal to the employer paying to employees who are in the same location. Other factors, such as age and skill are not allowed to be taken into account in the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four levels of wages based on expertise for employers to use. This is the only applicable wage mechanism permitted by law combining factors other than work and location.
The approval process for this application is based on employer attestation and documentary evidence submitted. Employers are informed of their responsibilities if they replace US workers.
USCIS clearly states the following on the non-immigrant work authorization of H-1B.
Non-immigrant H-1B may only work for US employers and only in the activities of H-1B described in the petition. US employers' petitions may place H-1B workers in the workplace of other employers if all applicable rules (eg, Labor Department regulations) are followed. Generally, a non-immigrant employee can work for more than one company at a time. However, every employer must follow the process to initially apply for non-immigrant employees.
When a non-immigrant H-1B works with many companies, if any entrepreneur fails to file an application, it is considered illegal and non-immigrant work fails to maintain its status.
The H-1B fee is allocated to the education and training of US workers
In 2007, the US Department of Labor, Employment and Training Administration (ETA) reported two programs, the Growth Initiative for High Growth Training and Regional Economic Development of Labor Innovation (WIRED), which has received or will receive $ 284 million and $ 260 million , respectively, from the cost of H-1B training to educate and train US workers. According to Seattle Times $ 1 billion of H-1B costs have been distributed by the Labor Department to further train US workforce since 2001.
Criticism of the program
The H-1B program has been criticized for many reasons. It was the subject of a hearing, "Immigration Reforms Needed to Protect Skilled American Workers," by the United States Senate Committee on Justice on March 17, 2015. According to Senator Chuck Grassley of Iowa, chairman of the committee:
This program is intended to serve entrepreneurs who can not find the skilled workers they need in the United States. Most people believe that employers should recruit Americans before they petition for H-1B workers. Under the law, however, most employers do not need to prove to the Department of Labor that they are trying to find Americans to fill the job first. And, if there are equivalent or even more qualified US workers available, the company does not have to offer them a job. Over the years, the program has become a government-assisted way for employers to bring in cheaper foreign labor, and now it seems these foreign workers are taking over - instead of equipping - the US workforce.
According to the editorial board of The New York Times, speaking in June 2015, the gap and weak enforcement of the H-1B visa program have resulted in the exploitation of both visa holders and American workers.
Use for outsourcing
In some cases, instead of being used to hire talented workers unavailable in the American labor market, this program is used for outsourcing. Senator Dick Durbin 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 supplement the US workforce , does not replace it; "" The program... is constrained by fraud and harassment and is now a vehicle for outsourcing that deprives American workers who qualify from their jobs. " The proposed law has been opposed by Compete America, a group of tech industry lobbyists,
In June 2015, congress leaders announced that the Labor Department had opened an investigation into outsourced technical tasks by Southern California Edison to Tata Consultancy Services and Infosys then laid off 500 technology workers.
There is no labor shortage
Paul Donnelly, in a 2002 article in Computerworld, quotes Milton Friedman as stating that the H-1B program acts as a subsidy for the company. Others who hold this view include Dr. Norman Matloff, who testified to the US House Committee Judiciary Committee on Immigration on the subject of H-1B. Matloff's paper for the University of Michigan's Law Journal Reform claims that there is no shortage of Americans eligible to fill American computer-related jobs, and that the data offered as evidence of American companies requiring H-1B visa to overcome labor shortage is wrong. The United States General Accounting Office found in a report in 2000 that controls on the H-1B program were less effective. GAO report recommendations are then implemented.
High-tech firms often cite the shortage of technology workers when they ask Congress to raise the annual H-1B visa limit, and have successfully secured exceptions passed. The American Immigration Lawyers Association (AILA), described the situation as a crisis, and the situation was reported by the Wall Street Journal, BusinessWeek and the Washington Post. Employers put pressure on Congress. Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill, "warning of a danger to the US economy if employers can not import skilled workers to fill job gaps." Congress considers the bill to address claims of shortage but ultimately does not revise the program.
According to a study conducted by John Miano and the Center for Immigration Studies, there is no empirical data to support the claims of employee shortage. Citing studies from Duke, Alfred P. Sloan Foundation, Georgetown University and others, critics also argue that in a few years, the number of imported foreign programmers and engineers exceeds the number of jobs created by industry. Hire Americans First has also posted hundreds of first-hand accounts of the H-1B visa damage report directly from individuals adversely affected by the program, many of whom are willing to talk to the media.
Studies conducted from the 1990s to 2011 by researchers from Columbia U, Computing Research Association (CRA), Duke U, Georgetown U, Harvard U, National Research Council of NAS, RAND Corporation, Rochester Institute of Technology, Rutgers U, Alfred P Sloan Foundation, Stanford U, SUNY Buffalo, UC Davis, Wharton UPenn School, Urban Institute, and US Department of Education, Educational Research & amp; Improvements have reported that the US has produced sufficient numbers and is capable of STEM (Science, Technology, Engineering and Mathematics) workers, while several studies from Hal Salzman, B. Lindsay Lowell, Daniel Kuehn, Michael Teitelbaum and others have concluded that the US employs only 30% to 50% of new STEM workers and is able to work in the STEM field. The IEEE 2012 announcement from a conference on STEM education funding and the job market states "only about half of those who have a STEM degree who have not graduated actually work in STEM-related fields after college, and after 10 years, only about 8% are still doing so ".
Ron Hira, a public policy professor at Howard University and a long-term critic of the H-1B visa program, recently called an "imaginary" IT talent shortage, a front for companies looking to hire relatively cheap foreign guest workers.
Wage depression
Wage depression is a criticism of chronic complaints about the H-1B program: The Department of Homeland Security's annual report shows that H-1B workers in Computer Science are paid an average salary of $ 75,000 per year (2014) of nearly 25,000 dollars below the average annual income for software developers and studies have found that H-1B workers are paid much lower than US workers. Claimed that the H-1B program is mainly used as a source of cheap labor. A paper by George J. Borjas for the National Bureau of Economic Research found that "a 10 percent immigration-induced increase in doctors' offerings lowers the wages of competing workers by about 3 to 4 percent." A 2016 study found that H-1B visas retained wages for US computer scientists 2.6-5.1% lower, and employment in computer science for US workers 6.1-10.8% lower, but led to greater production efficiency, lowered IT product prices, increase the output of IT products and lead to much higher profits for IT companies.
The application of Labor Conditions (LCAs) included in the H-1B petition should ensure that H-1B workers are paid with the prevailing wage in the labor market, or the average employer's actual wages (whichever is higher), but there is evidence that some employers do not comply with these provisions and avoid paying real wages despite strong sanctions for the perpetrators.
Theoretically, the LCA process seems to offer protection for US and H-1B workers. However, according to the US General Accounting Office, restrictions on enforcement and procedural issues make this protection ineffective. Ultimately, the employer, not the Department of Labor, determines what sources determine the wages applicable to the offered position, and may choose among competing surveys, including his own wage survey, provided the survey complies with specified rules and regulations..
The law specifically limits the LCA Labor Department approval process to check "clear completeness and inaccuracies". In FY 2005, only about 800 LCAs were rejected from more than 300,000 submitted. Hire Americans First has posted several hundred first-hand accounts of individuals adversely affected by the program.
According to lawyer John Miano, the applicable H-1B wage requirement is "rampant" with a gap. Ron Hira, assistant professor of public policy at the Rochester Institute of Technology, drew up a median wage in 2005 for the new H-1B (IT) information technology, which was found to be $ 50,000, lower than the initial wage for IT graduates with B.S. degree. US OES government office data shows that 90% of IT H-1B wages are below the US average wage and 62% in the 25th percentile for the same job.
In 2002, the US government initiated an investigation into Sun Microsystem recruitment practices after an ex-employee, Guy Santiglia, filed a complaint with the US Department of Justice and the US Department of Labor accusing that the Santa Clara company discriminated against Americans in favor of foreign workers on an H-1B visa. Santiglia accused the company of being biased against US citizens when it laid off 3,900 workers by the end of 2001 and at the same time applies to thousands of visas. In 2002, about 5 percent of Sun's 39,000 employees had temporary work visas, he said. In 2005, it was decided that Sun only violated minor requirements and that none of these violations were large or intentional. Thus, the judge only ordered Sun to change his posting practice.
2016 presidential election and H-1B visa
Visa H-1B became a problem in the 2016 presidential election. According to Computerworld, Donald Trump's candidate took the stance to "pause" and rewrite the H-1B system. In addition, during several rallies, he invited guest speakers to raise awareness about hundreds of IT workers displaced by H-1B guest workers. Hillary Clinton candidates speak negatively about H-1B workers who are hired because they are cheaper and because they rely on employers, are more likely to abide during harassment. Clinton said that it is impossible to consider the H-1B system individually and will only look towards reform as part of a comprehensive immigration reform.
Bernie Sanders opposes the guest worker program and is also skeptical about the immigrant worker visa (H-1B), saying, "Last year, the top 10 H-1B guest workers were all offshore outsourcing firms.These companies are responsible for shipping in quantities "In an interview with Vox he expressed his opposition to the open border immigration policy, describing it as:
... right-wing proposals, which say essentially no United States... you get rid of the nation-state concept. What the right-wing people want in this country is the open border policy. Bring all kinds of people, work for $ 2 or $ 3 per hour, that would be great for them. I do not believe that. I think we should raise wages in this country, I think we should do all we can to create millions of jobs.
However, despite Sanders' political maneuvers, a report released by Congress found that
[H-1B workers] receive lower wages, fewer senior job titles, smaller signing bonuses and less salary and compensation increases than they usually do in the actual work they do.
Risk for employee
Historically, H-1B holders are sometimes described as contract workers, and while comparisons are no longer attractive, it has more validity before the passage of American Competitiveness in the Twenty-First Act of 2000. Though immigration generally takes a short time. - and long-term visitors to deny any ambition to seek a green card (permanent residence), H-1B visa holders are an important exception, since H-1B is legally recognized as a possible step towards a green card under the so-called double-purpose doctrine.
H-1B visa holders may be sponsored for their green card by their employers through Applications for Certification of Foreign Workers, submitted to the US Department of Labor. In the past, the sponsorship process has taken several years, and for the most part the H-1B visa holders can not change jobs without losing their place according to the green card. This creates a loyalty element imposed on the employer by the H-1B visa holder. Critics allege that employers take advantage of this enforced loyalty because it reduces the risk that H-1B employees may leave work and go to work for competitors, and it puts citizen workers at a disadvantage in the labor market, as companies have less assurance that citizens will continue to work for long periods of time, especially if working conditions are difficult, lower wages or difficult or complicated jobs. It has been argued that this makes the H-1B program particularly attractive to employers, and that labor laws in this regard have been influenced by companies seeking and benefiting from those benefits.
Recent news reports show that the recession that began in 2008 will worsen the situation of H-1B visas, both for program supporters and for those who oppose it. The process of obtaining a green card has been so long that during these years of recession it was unusual that the sponsor's company failed and disappeared, thus forcing H-1B employees to find other sponsors, and losing their place accordingly for a green card. An H-1B employee can be just a month away from getting their green card, but if the employee is laid off, he may have to leave the country, or go to the end of the line and start the process to get a green card, and wait up to 15 years longer, depending on the category citizenship and visas.
The American Competitiveness of the Twenty-First Act of 2000 gave little relief to people waiting long for a green card, allowing the extension of H-1B beyond the normal 6-year period, and by making it easier to change the sponsor's employer.
Visa out-sourcing/off-shoring
In his statement on the floor on H-1B visa reform, Senator Dick Durbin stated "the H-1B work visa lasts for three years and can be extended for three years.What happens to the workers afterwards? Well, they can stay, maybe, but these new companies have a much better idea for making money, they send engineers to America to fill places - and earn money to do it - and then after three to six years, they bring them back to work for a competing company with American companies they call their outsourced visas they send their talented engineers to learn how Americans do business and then bring them back and compete with American companies. "Critics of using H-1B for outsourcing also noted that more H- 1B awarded to companies based in India rather than b ermarkas in the United States.
Of all computer systems analysts and programmers on H-1B visas in the US, 74 percent are from Asia. This large-scale migration of Asian IT professionals to the United States is seen as a major cause of the rapid outsourcing of offshore outsourcing.
In FY 2009, due to worldwide recession, applications for H-1B visas by offshore outsourcing companies were significantly lower than in previous years, but 110,367 H-1B visas were issued, and 117,409 were issued in FY2010.
Departure requirements on job loss
If an employer dismisses H-1B workers, the employer must pay for transport of laid-off workers outside the United States.
If an H-1B worker is dismissed for any reason, the H-1B program technically does not specify an allowance or grace period to settle a person's business regardless of how long an H-1B worker may have lived in the United States. To collect one's business, applying for change to another non-immigrant status can be a must.
If the H-1B worker is dismissed and attempts to find a new H-1B employer to petition him, the individual is deemed to have no status if there is a one-day gap between the last day of work and the date that the new H-1B petition is filed. While some lawyers claim that there is a grace period of thirty days, sixty days, or sometimes ten days, that's not legal. In practice, USCIS has accepted H-1B transfer applications even with a job gap of up to 60 days, but that does not mean guaranteed.
Some confusion about the alleged grace period arises because there is a 10-day grace period for H-1B workers to leave the United States at the end of their stay (is not applicable for laid-off workers). This grace period is valid only if the employee is employed until the expiration date of H-1B listed on the I-797 approval notice, or his I-94 card. 8 CFR 214.2 (h) (13) (i) (A).
American workers are instructed to train their foreign replacement
There are cases where employers use programs to replace their American employees with H-1B employees, and in some cases, American employees are even instructed to train their replacements.
Age discrimination
In Fiscal Year 2014, 72% of H-1B holders are between 25 and 34 years old, according to USCIS "Characteristics of Special Occupation Workers (H-1B): Fiscal Year 2014", Table 5 of the report indicates that only 3,592 of 315,857 H- approved for workers over 50 years of age. Computerworld has reported H-1B age discrimination in the program, and in the case against the Disney World H-1B replacement tactic, age discrimination is an aspect of court filings in 2015.
Fraud
The US Citizenship and Immigration Service "H-1B Benefit Fraud & Compliance Assessment" in September 2008 concluded 21% of the H-1B visas provided were from fraudulent applications or applications with technical offenses. Fraud is defined as a deliberate misrepresentation, forgery, or the removal of material facts. Technical violations, errors, omissions, and failure to comply with those not included in the definition of fraud are included in the rate of 21%.
In 2009, federal authorities arrested people for a national H-1B visa scam in which they allegedly sent fake statements and documents in connection with a petition for an H-1B visa.
Fraud included the acquisition of a fake university degree for H-1B candidate workers, training workers to lie to consular officials, hiring a worker with no jobs in the US, charging workers money to be hired, positioning workers without pay, and taking payrolls of US workers. Workers, who have little choice in this regard, are also involved in fraud, and can be sued, fined, and deported.
Abuse
Some workers who come to the US on H-1B visas receive ill-treatment, unfair, and illegal by the brokers who place them on jobs in the US, according to a report published in 2014. The United States Trade Victim Rehabilitation Protection Act 2013 is graduated to help protect the rights of foreign workers in the US, and the US Department of State distributes pamphlets to inform foreign workers about their rights.
Similar programs
In addition to the H-1B visa, there are various other visa categories that allow foreign workers to come to the US to work for some time.
An L-1 visa is issued to a foreign employee of a company. Under the current regulations, foreign workers must work for the company for at least a year in the preceding three years before obtaining a visa. The L-1B visa is appropriate for non-immigrant workers temporarily transferred to the United States based on their particular knowledge of the company's techniques and methodology. L-1A visa is for managers or executives who manage people or important functions of the company. There is no requirement to pay the wages applicable to the L-1 visa holders. For Canadian residents, a special L visa category is available.
Visa TN-1 is part of the North American Free Trade Agreement (NAFTA), and is issued to Canadians and Mexicans. The TN visa is only available to workers who enter one of the pre-determined job listings determined by the NAFTA agreement. There are special requirements for Visa TN.
E-3 visas are issued to Australians under the free trade agreement of Australia.
Visa H-1B1 is a subset of H-1B issued to residents of Chile and Singapore under the 2003 United States-Chile Free Trade Agreement; PL108-77 Ã,§ 402 (a) (2) (B), 117 Stat. 909, 940; S1416, HR2738; passed in House 2003-07-24 and the 2003 United States-Singapore Free Trade Agreement; PL108-78 Ã,§ 402 (2), 117 Stat. 948, 970-971; S1417, HR2739; passed in House 2003-07-24, passed in the 2003-07-31 senate, signed by executive (GWBush) 2003-05-06. According to USCIS, unused H-1B1 visas are added to the base quota of H-1B next year of 58,200.
One of the most recent trends in work visas is that different countries seek to get a special preference for their citizens as part of the deal negotiations. Another trend is for changes in immigration law to be included in a large Authorization or Omnibus bill to avoid controversy that may accompany a separate vote.
H-2B visa: The H-2B non-immigrant program allows employers to recruit foreign workers to come to the US and do temporary, one-time, seasonal, peak or intermittent temporary non-agricultural work. There is a limit of 66,000 per year on the number of foreign workers who may receive H-2B status.
demographics and H-1B tables
Approved H-1B
H-1B visa is issued per year
Top H-1B entrepreneurs with approved visa
See also
- SKIL Bill
- Free trade debate
- Labor shortage
- Immigration Voice
- visa L-1
- Disney litigation
Note
References
- United States Citizenship and Immigration Services, "Characteristics of Special Occupation Workers (H-1B)", for FY 2004 and FY 2005, November 2006.
- "Microsoft Cuts 5,000 Jobs as Recession Reserves Growth (Update5)", Bloomberg , Jan. 22, 2009 (Microsoft Lays off 5,000 even when they used 3,117 visas in 2006.)
- Bill Gates, Chairman of Microsoft, Testimony to the US Senate Committee on Health, Education, Labor and Pensions. Hearing "Strengthening American Competitiveness for the 21st Century". March 7, 2007
- Working Week, Immigration: Google Made the Case, June 7, 2007.
- Business Week, Who Gets a Temp Working Visa? 7 Jun 2007 (The Top 200 H-1B Visa User Chart)
- Business Week, Immigration Battle: Tech vs. Tech, May 25, 2007.
- Business Week, Crackdown on Indian Outsourcing Company, May 15, 2007.
- Dr. Norman Matloff, Dismantling the Software Myths that Desperate Employment Limitations, Testimony to the US House of Justice Committee, April 1998, updated in December 2002
- CNN, Lou Dobbs, Programmer Guild Interview & amp; Transcript, August 26, 2005
- Congressional Record: Illegal Foreigner Taking Jobs in America, June 18, 2003 (Home)
- Immigration Studies Center, Backgrounder: The bottom of the pay scale, Wages for H-1B Computer Programmer, John Milano, 2005.
External links for H-1B information
- US. State Department information on H-1B visa
- US. GAO Report on H-1B Problems, PDF format
- H-1B Quota Update from USCIS
More links
- Immigration video of Pittsburgh law firm triggered an internet fire storm, Pittsburgh Post-Gazette, June 22, 2007
- "House Representatives Request Investigation into YouTube Video" Senator Chuck Grassley and Rep Lamar Smith asked the Labor Department to look into a video they say is a H-1B torture document by the company. Information Week , June 21, 2007
- Oct. A 2007 Study by Georgetown University - Into the Eye of the Storm: Assessing Evidence on Science Education and Engineering, Quality, and Demand for Labor
Source of the article : Wikipedia
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