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H-1B Visa
The H-1B is a non-immigrant visa category in the Unite States under the immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to seek temporary help from skilled foreigners. The H-1B classification is for "specialty occupations" only. The occupation must require a bachelor's degree or equivalent for the application of theoretical and highly specialized knowledge. Likewise, the foreign worker must possess at least a bachelor's degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer. The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum.
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Congressional Yearly Numerical Cap
There is an annual cap on H-1B admissions of 65,000 workers per fiscal year. The ceiling set by Congress was 115,000 in both FY1999 and FY2000, 107,500 in FY2001, and back to 65,000 in FY2002. The cap was raised by 297,500 over three years, FY2000-FY2002. 80,000 new H-1B visas were added for FY2000, 87,500 visas for FY2001, and 130,000 visas for FY2002. In addition, excluded from the ceiling are all H-1B nonimmigrant who work for universities and nonprofit research facilities. NAFTA allows a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master's or higher degree from U.S. universities from the cap on H-1B visas.
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Quotas and Changes in Quotas
The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and colleges (note: contrary to popular belief, non-profit organizations are not automatically exempt, but may be so if affiliated with a university or college). In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.
During the early years of this quota in the early 1990s, this quota was rarely actually reached. By the mid-1990s, however, the quota tended to be filled each year on a first come, first served basis, resulting in new H-1Bs often being denied or delayed because the annual quota was already filled. In 1998 the quota was increased first to 115,000 and then, in 2000, to 195,000 visas per year. This increase in the quota seemed to play a role in over saturating an already softening high-tech job market. During the years the quota was 195,000, it was never reached, and the availability of high-tech jobs in the USA plummeted as there was just too much competition for positions.
In FY 2004, the quota reverted to 90,000 when the temporary increase passed by Congress in 1999 expired. Since then, the quota is again filling up rapidly every year, making H-1Bs again increasingly hard to get. More recently, the basic quota was left at 65,000 but with an additional 20,000 visas possible for foreign workers with U.S. advanced degrees. Of the 65,000 total, 6,800 are initially reserved for citizens of Chile and Singapore under free trade agreements with those countries; however, if these reserved visas are not used under the agreements, they go back to the general pool. Outside of the 65,000 quota, another 10,500 visas annually are available to Australian citizens under a similar but more flexible program, the E-3 visa program.
For FY 2007, beginning on October 1, 2006, the entire quota of visas for the year was exhausted within a span of less than 2 months on May 26, 2006[4], well before the beginning of the financial year concerned. The additional 20,000 Advanced Degree H-1B visas were exhausted on July 26. For FY 2008, the entire quota was exhausted before the end of the first day on which applications were accepted, April 2[5]. Under USCIS rules, the 123,480 petitions received on April 2 and April 3 that were subject to the cap were pooled, and then 65,000 of these were selected at random for further processing[6]. The additional 20,000 Advanced Degree H-1B visas for FY 2008 was exhausted on April 30.
In its annual report on H-1B visas released in November 2006, USCIS stated that it approved 131,000 H-1B visas in FY 2004 and 117,000 in FY 2005. The inflation in numbers is because H-1B visas granted to employees of not for profit organizations is not numerically capped.
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Duration of Stay
The duration of stay is 3 years, extendible to 6. An exception to maximum length of stay applies in certain circumstances: (i) 1 year extensions if a labor certification application has been filed and is pending for at least 365 days; and (ii) 3 year extensions if an I-140 has been approved.
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U.S. policy on maximum duration
In theory, the maximum duration of the H-1B visa is six years (ten years for exceptional Defense Department project-related work). H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa.
There are generally two exceptions to the 6 year duration of the H-1B visa:
If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to his 5th year anniversary of having the H-1B visa, he is entitled to renew his H-1B visa in 1 year increments until a decision has been rendered on his application for permanent residence.
If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to his priority date not being current, he may be entitled to a 3 year extension of his H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000.
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Dependents of H-1B Visa Holders
H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN). An H4 Visa holder may attend school, obtain a driver's license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver's license in cases where driver's licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required.
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H-1B dependent employers
Recent H-1B legislation requires certain employers, called H-1B dependent employers to advertise positions in the USA before petitioning to employ H-1B workers for those positions.
For firms of 50 employees, an H-1B dependent employer is defined as having more than 15% of their employees in H-1B status. Smaller firms are allowed to have a higher percentage of H-1B employees before becoming 'dependent'.
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H-1B Employment
According to the USCIS, "H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer." Enforcement of these rules depends upon the employee, however. The Department of Labor has neither the authority nor the manpower to investigate violations of these rules unless and until a complaint is made.
As the rules are written, there is no requirement that an American be sought to fill a position, nor given preference in layoffs unless the company is "H-1B dependent", i.e. 15 percent or more of its global workforce consists of H-1Bs earning less than $60,000 per year, exempting those who hold master's degrees. Only about one percent of H-1B employers are deemed "H-1B dependent," and even then the employer is only required to "attest" that he was not able to find an American. (The true level of H-1B dependence is most likely higher since the current rules for measuring H-1B dependence are applied across all occupations within a company including administrative, sales, marketing, and other technical positions, rather than specifically to the technology areas within a company for which an H-1B is granted.)
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H-1B and DOL
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. Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA, the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout.
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H1-B and Legal Immigration
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries (like India, the Philippines and China) to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in 1 year or 3 year increments to continue to be in legal status while their green card application is in process
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H1-B and Simliar Program
In addition to H-1B visas, there are a variety of other visa categories which allow foreign workers to come into the U.S. to work for some period of time.
L-1 visas are issued to foreign employees of a corporation. Under recent rules, the foreign worker must have worked for the corporation for at least one year in the preceding three years prior to getting the visa. An L-1B visa is appropriate for nonimmigrant workers who are being temporarily transferred to the United States based on their specialized knowledge of the company's techniques and methodologies. An L-1A visa is for managers or executives who will either manage people or an essential function of the company. There is no requirement to pay prevailing wages for the L-1 visa holders. For Canadian residents, a special L visa category is available.
TN-1 visas are part of the NAFTA treaty, and are issued to Canadian and Mexican citizens. Formerly, they were also issued to third country citizens who had obtained permanent residency in Canada. This procedure is called "touching base". TN visas are only available to workers who fall into one of a pre-set list of occupations determined by the NAFTA treaty. There are specific eligibility requirements for the TN Visa.
E-3 visas are issued to citizens of Australia under the Australia free-trade treaty.
H-1B1 visas are issued to residents of Chile and Singapore under the amended NAFTA treaty.
One recent trend in work visas is that various countries attempt to get special preference for their nationals as part of treaty negotiations. Another trend is for changes in immigration law to be embedded in large Authorization or Omnibus bills to avoid the controversy that might accompany a separate vote.
H-2B: The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status
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