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Overview of H-1B Visas Nonimmigrant temporary workers seeking employment in the United States are generally classified in the "H" visa category. The largest number of H visas are issued to temporary workers in specialty occupations, known as H-1B nonimmigrants. 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. 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. DOL's Employment and Training Administration (ETA) adjudicates several types of Labor Condition Applications (LCA's) filed by employers who seek to import foreign workers. The H-1B labor attestation, a three-page application form, is a streamlined version of the LCA. It is the first step for an employer wishing to bring in an H-1B professional foreign worker. In LCA's for H-1B workers, the employer must attest that the firm will pay the nonimmigrant the greater of the actual compensation paid other employees in the same job or the prevailing compensation for that occupation; the firm will provide working conditions for the nonimmigrant that do not cause the working conditions of the other employees to be adversely affected; and that there is no applicable strike or lockout. The firm must provide a copy of the LCA to representatives of the bargaining unit or - if there is no bargaining representative - must post the LCA in conspicuous locations at the work site. The prospective H-1B nonimmigrants must demonstrate to the U.S. Citizenship and Immigration Services Bureau (USCIS) in the Department of Homeland Security (DHS) that they have the requisite education and work experience for the posted positions. USCIS then approves the petition for the H-1B nonimmigrant (assuming other immigration requirements are satisfied) for periods up to three years. An alien can stay a maximum of six years on an H-1B visa. Trends in Admissions The number of petitions approved for H-1B workers escalated in the late 1990s and peaked in FY2001 at 331,206 approvals. Data from the DHS Office of Immigration Statistics illustrate that the demand for H-1B visas continued to press against the statutory ceiling, even after Congress increased it to 115,000 for FY1999-FY2000 and to 195,000 for FY2001-FY2003. The number of H-1B petitions approved dropped to 197,537 in FY2002. Only 79,100 H-1B approvals fell under the cap in FY2002. DHS Immigration Statistics reports that 103,584 petitions were approved for newly arriving H-1B workers in FY2002. There were also 93,953 petitions approved in FY2002 for H-1B workers who were continuing to be employed after their initial H-1B visa had expired. In FY2001, there were 163,200 approved petitions that counted under the cap. The former INS reported that 201,079 petitions for newly arriving H-1B workers were approved in FY2001. That year INS also reported that 130,127 H-1B workers already in the CRS-4 United States were approved for continuing employment, up from 120,853 continuing H-1B workers approved in FY2000. The INA sets a 65,000 numerical limit on H-1B visas that was reached for the first time prior to the end of FY1997, with visa numbers running out by September 1997. The 65,000 ceiling for FY1998 was reached in May of that year, and - despite the statutory increase - the 115,000 ceiling for FY1999 was reached in June 2002. About 5,000 cases approved in FY1997 after the ceiling was hit were rolled over into FY1998. Over 19,000 cases approved in FY1998 after the ceiling was hit were rolled over to FY1999. The former INS acknowledged in autumn 1999 that thousands of H-1B visas beyond the 115,000 ceiling were approved in FY1999, allegedly as a result of problems with the automated reporting system. Then INS hired KPMG Peat Marwick to audit and investigate how the problems occurred and how pervasive they may be. KPMG Peat Marwick determined that between 21,888 and 23,3385 H-1B visas were issued over the ceiling in FY1999. Meanwhile, in mid-March 2000, INS announced the FY2000 ceiling of 115,000 would be reached by June. Ultimately, INS reported that 136,787 petitions for newly arriving H-1B workers were approved in FY2000. As illustrates, most H-1B petitions are approved outside of the numerical limits due to exemptions added to the law. Over 217,00- H-1B petitions were approved in FY2003, but only about 78,000 were subject to the cap of 195,000. The FY2004 limit of 65,000 was reached in mid-February. On October 1, 2004, USCIS announced that it had already reached the FY2005 cap, which that year was 58,200 because of visas set aside by the U.S.-Chile and U.S.-Singapore Free Trade Agreements. H-1B Nonimmigrant Petitions Approved, FY1992-FY2005 DOL reports that nearly half the permanent employment-based immigrants converted from H-1B. During the 104 Congress and earlier, some observers maintained that many foreign students violate the intent of the provision that requires they have a foreign residence that they do not intend to abandon. Specifically, the practice of a foreign student petitioning to change status to nonimmigrant H-1B professional and specialty workers raised concerns. Fears that foreign students, as well as H-1Bs, were "leap frogging" the laws that protect U.S. workers from being displaced by immigrants prompted some to suggest that all foreign students and foreign temporary workers return home for 2 years to establish residency if they wish to return to the United States. This proposal circulated in the Senate, but it met with strong and varied opposition from the educational community and business interests. Many argued it would just lead to abuses and increase incentives to manipulate the nonimmigrant visa process. B. Lindsay Lowell, "Foreign Student Adjustment to Permanent Status in the United States," According to USCIS, approximately 288,000 H-1B petitions were approved in FY2004 and approximately 266,000 in FY2005. The FY2006 cap was hit before the fiscal year began in August 2005. Pathways to Permanent Residence The H-1B visa often provides the link for the foreign student (F-1 visa) to become legal permanent residence (LPR). Anecdotal accounts tell of foreign students who are hired by U.S. firms as they are completing their programs. The employers obtain H-1B visas for the recent graduates, and if the employees meet expectations, the employers may also petition for the nonimmigrants to become legal permanent residents through one of the employment based immigration categories. Some policy makers consider this a natural and positive chain of events, arguing that it would be foolish to educate these talented young people only to make them leave to work for foreign competitors. Others consider this "F-1 to H-1B to LPR" pathway an abuse of the temporary element of nonimmigrant status and a way to circumvent the laws and procedures that protect U.S. workers from being displaced by immigrants. Migration Policy Institute, The Growing Connection Between Temporary and Permanent Immigration Systems, by Jeanne Batalova, Jan., 2006. Employment-based adjustments were foreign students and the accompanying immediate family of foreign students. That analysis also found that H worker adjustments to LPR status had increased from 7,244 in FY1988 to 24,223 in FY1994 - an increase of over 225% in six years - which was likely due in part to the change in the Immigration Act of 1990 to permit dual intent for H-1Bs
Unless otherwise indicated, Not Certified by the Texas Board of Legal Specialization. |
