H-1B Visa

The H-1B Specialty Occupations visa program (H-1B) is available to employers seeking to hire nonimmigrant aliens as workers in specialty occupations, according to the U.S. Department of Labor. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The H-1B visa program was created under the Immigration Act of 1990 and signed into law by President George H. W. Bush. The chief architect behind the visa was Congressman Bruce Morrison, a Democrat from Connecticut. As a practicing attorney specializing in federal immigration law and a lobbyist and chairman of the Morrison Public Affairs Group, Morrison continues to benefit financially from the passage of the Immigration Act of 1990.

The H-1B was created under the false premise of a “skilled-labor shortage” concocted by dubious studies pushed by the National Science Foundation. Employers in government, universities and industries sought to tamper with the free market by suppressing wages of domestic STEM graduates by increasing the nonimmigrant alien workforce.

There is no legal requirement for employers to demonstrate that they first tried hiring qualified American workers before sponsoring a nonimmigrant alien for the H-1B. The H-1B is also a dual-intent visa, which means a nonimmigrant alien worker can apply for permanent residence (Green Card) while on the temporary H-1B work visa. While the H-1B does not require employers to demonstrate that they first tried hiring qualified Americans workers, the employment-based Green Card process does. So employers must now find ways to reject qualified American workers in order to get Green Cards for their H-1B workers.

The H-1B is valid for three years and can be renewed for three additional years. Before their sixth year ends, H-1B workers will cajole their employers to start the Green Card process for them in order to extend employment beyond the six years before their H-1B visa expires. Upon approval of their I-140 (immigrant petition for alien workers), H-1B workers can work beyond their six-year limit indefinitely.

The H-1B program also has provisions for dependent spouses to seek employment in the U.S. by filing Form I-765 once the H-1B visa holder has started the permanent residency status process and has had the I-140 petition approved.

Included in the application process for an H-1B:

• The employer files a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) certifying that the wage is at least equal to the prevailing wage and wages paid to others in the company in similar positions. This is a rubber stamp operation with zero scrutiny by the DOL because the law requires DOL to approve all LCAs unless it “finds that the application is incomplete or obviously inaccurate.” As a result, employers tend to put down prevailing wage rates that are much lower than fair market rates knowing that the DOL won’t bother scrutinizing them and will approve them.
• Once the LCA is approved by the DOL, the employer files Form I-129 (Petition for a Nonimmigrant Worker) and submits all the supporting paperwork and fees associated with the petition. Upon approval, the nonimmigrant alien worker may begin to work for the employer that sponsored the visa.

H-1B Visa Stats

• Indian citizens receive approximately 75 percent of H-1B visas each year. China comes in second place, receiving roughly 13 percent.
• Each year, 65,000 H-1B visas are available, with 20,000 additional visas reserved for nonimmigrant aliens graduating with a master’s degree from a U.S. university. Institutions of higher education and nonprofits/government research organizations are cap-exempt.
• The Top 10 sponsors of H-1B visas are IT outsourcing companies.
• The majority of H-1B visas are for computer/software occupations.
• A study from the Economic Policy Institute found 60 percent of H-1B positions certified by the DOL are assigned wage levels well below the local median wage for the occupation.