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H 1 Visas

The H1 B Visa has become a major problem in the US despite not being talked about by the media. The H1 Visa has depressed wages in many industries including the computer industry. Graduates with computer science degrees have seen the wage scale depressed by the continual onslaught of these foreign workers who work for less and fewer benefits.  These Visas basically are a subsidy for corporations.  Bill Gates is a proponent of these foreign workers and they are eagerly hired by Microsoft.  The joke is that's why Windows code is so bad because it well known according many in the computer industry that you get what you pay for, and many foreign workers in the field are noted for their "sloppy code" in programming.  Below is a discussion of the Law regarding these visas.

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave 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[1] including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, 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[2] (with the exception of fashion models, who must be "of distinguished merit and ability".)[3] 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 duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:

one-year extensions if a labor certification application has been filed and is pending for at least 365 days; and
three-year extensions if an I-140 Immigrant Petition has been approved.
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 H1B portability or transfer, provided the new employer sponsors another H1B visa, which may or may not be subjected to the quota. Under current law, H1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.


Employees made to pay H1-B sponsorship costs
Although the practice is unlawful, it is widely believed that some employers make their H1-B employees pay for most, all or in excess, of the costs associated with sponsoring and processing an H1-B application. These fees are usually under the guise of bond or other instruments, in an attempt to serve as a legal workaround to the law.

No labor shortages
Paul Donnelly, in a 2002 article in Computerworld, cited Milton Friedman as stating that the H-1B program acts as a subsidy for corporations.[23] Others holding this view include Dr. Norman Matloff, who testified to the U.S. House Judiciary Committee Subcommittee on Immigration on the H-1B subject. Matloff's paper for the University of Michigan Journal of Law Reform 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.[24] The United States General Accounting Office found in a report in 2000 that controls on the H-1B program lacked effectiveness.[25] The GAO report's recommendations were subsequently implemented. High-tech companies often cite a tech-worker shortage when asking Congress to raise the 65,000 annual cap on H-1B visas, but according to a study conducted by John Miano and the Center for Immigration Studies there is no empirical data to support that claim.[26] Citing studies done at 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.[27] Organizations have also posted hundreds of first hand accounts of H1-B Visa Harm reports directly from individuals negatively impacted by the program, many of whom are willing to speak with the media.[28]

 Relatively low skills required
Another criticism of the H-1B program is its vague eligibility requirements, but specific guidelines, upheld by a body of case law, define the requirements. While frequently described as a program for highly skilled workers, the H-1B nonimmigrant visa category specifically applies to specialty occupations. It can be argued that any job that requires a minimum of a bachelor's degree is "highly skilled".

Specialty occupations have been defined as positions that require theoretical or technical expertise in a specialized field and have generally been interpreted as being those that normally require the attainment of a Bachelor's degree.[29] Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors, veterinarian, dentist, registered nurse, business managers, and college professors. The H-1B visa program also includes fashion models.

 Wage depression
Wage depression is a chronic complaint critics have about the H-1B program: some studies have found that H-1B workers are paid significantly less than U.S. workers.[30][31] It is claimed[32][33][34][35][36][36] that the H-1B program is primarily used as a source of cheap labor. A paper by Harvard Professor 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."[citation needed]

The 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)[citation needed], but evidence exists that some employers do not abide by these provisions and avoid paying the actual prevailing wage despite stiff penalties for abusers.[37]

DOL has split the prevailing wage into four levels, with Level One representing about the 17th percentile of wage average Americans earn. About 80 percent of LCAs are filed at this 17th percentile level[citation needed]. This four-level prevailing wage can be obtained the DOL website,[38] and is generally far lower than average wages[citation needed].

The "prevailing wage" stipulation is allegedly vague and thus easy to manipulate[citation needed], resulting in employers underpaying visa workers. According to Ron Hira, assistant professor of public policy at the Rochester Institute of Technology, the median wage in 2005 for new H-1B information technology (IT) was just $50,000, which is even lower than starting wages for IT graduates with a B.S. degree. The U.S. government OES office's data indicates that 90 percent of H-1B IT wages were below the median U.S. wage for the same occupation.[39]

In 2002, the U.S. government began an investigation into Sun Microsystems' hiring practices after an ex-employee, Guy Santiglia, filed complaints with the U.S. Department of Justice and U.S. Department of Labor alleging that the Santa Clara firm discriminates against American citizens in favor of foreign workers on H-1B visas. Santiglia accused the company of bias against U.S. citizens when it laid off 3,900 workers in late 2001 and at the same time applied for thousands of visas. In 2002, about 5 percent of Sun's 39,000 employees had temporary work visas, he said.[40] In 2005, it was decided that Sun violated only minor requirements and that neither of these violations was substantial or willful. Thus, the judge only ordered Sun to change its posting practices.[41]

Hidden costs and risks for employers

Although, lower wages do not necessarily mean lower costs for employers. The costs for a company to apply for an H-1B visa can be significant, and it can vary between $1,440 and $5,000[42] as the H1B fee was increased by $2000 for petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status from August 14, 2010 as President Obama signed into law Public Law 111-230,[43] depending on the attorney's fees (if used), the number of employees in the company, and if a faster premium service is paid, without including the cost of a possible trip to the border of the country of origin, nor the renewal costs. Besides that, there is no guarantee that the prospective employee will be granted the visa due to high demand, and the expenses are sometimes non-refundable. In addition to that, if the employer should dismiss the employee, the company is liable for any reasonable costs associated with relocation back to the employee's last foreign residence. This provision covers only dismissal; it is not relevant when an employee chooses to resign.[citation needed]

 Risks for employees
Historically, H-1B holders have sometimes been described as indentured servants,[44] and while the comparison is no longer totally accurate, it had more validity prior to the passage of American Competitiveness in the Twenty-First Century Act of 2000. 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.

H-1B visa holders may be sponsored for their green cards by their employers through an Application for Alien Labor Certification, filed with the U.S. Department of Labor.[citation needed] In the past, the sponsorship process has taken several years, and for much of that time the H-1B visa holder was unable to change jobs without losing their place in line for the green card. This created an element of enforced loyalty to an employer by an H-1B visa holder. Critics[who?] alleged that employers benefit from this enforced loyalty because it reduced the risk that the H-1B employee might leave the job and go work for a competitor, and that it put citizen workers at a disadvantage in the job market, since the employer has less assurance that the citizen will stay at his job for an extended period of time, especially if the work conditions are tough, wages are lower or the work is difficult or complex. It has been argued that this makes the H-1B program extremely attractive to employers, and that labor legislation in this regard has been influenced by corporations seeking and benefiting from such advantages.[citation needed]

Some recent news reports suggest that the recession started in 2008 will exacerbate the H-1B visa situation, both for supporters of the program and for those who oppose it.[45] The process to obtain the green card has become so long, that during these recession years it has not been unusual that sponsoring companies fail and disappear, thus forcing the H-1B employee to find another sponsor, and losing their place in line for the green card. An H-1B employee could be just one month from obtaining their green card, but if he or she are laid off, he or she will have to leave the country, or go to the end of the line and start over the process to get the green card, and wait as much as 10 more years, depending on their nationality and visa category.[46]

 Fraud by Employers and Applicants
The U.S. CITIZENSHIP AND IMMIGRATION SERVICES "H-1B Benefit Fraud & Compliance Assessment" of September 2008 concluded 21% of H1-B visa granted originate from fraudulent applications or applications with technical violations.[47] 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. Subsequently, USCIS has made procedural changes to reduce the number of fraud and technical violations on H-1B applications.

 The Outsourcing Visa
In his floor statement on H-1B Visa Reform, Senator Dick Durban stated "The H-1B visa job lasts for 3 years and can be renewed for 3 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 3 to 6 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."[48] Critics of H-1B use for outsourcing have also noted that more H1-B visas are granted to companies headquartered in India than companies headquartered in the United States.[49]

 Criticisms by H-1B holders
 Payment of out-of-state tuition
In most states, H-1B workers and their dependents do not qualify for in-state tuition regardless of the amount of time spent in the US[citation needed]. However, for more than a decade, a few states such as California, New York, Washington and Texas have extended in-state tuition to H-1B workers and dependents. Typically the decision to offer in-state tuition to H-1B and H4 residents is taken as a result of an adverse state court decision that uses the precedent established for G-4 visas in the Supreme Court decision in TOLL v. MORENO, 441 U.S. 458 (1979).

 Social Security and Medicare taxes
H1B employees have to pay Social Security and Medicare taxes as part of their payroll. Like US citizens, they are eligible to receive Social Security benefits even if they leave the United States, provided they have paid Social Security benefits for at least 10 years. Further, the US has bilateral agreements with several countries to ensure that the time paid into the US Social Security system, even if it is less than 10 years, is taken into account in the foreign country's comparable system and vice versa.[50]

 Spouses cannot work
The spouse of a H-1B visa holder who generally comes on H-4 (dependent) visa cannot work in the United States.[51]

 Unrealistic Departure Requirement on Job Loss
If an H-1B worker is laid off for any reason, the H-1B program technically does not specify a time allowance or grace period to round up one's affairs irrespective of how long the H-1B worker might have lived in the United States. To round up one's affairs, filing an application to change to another non-immigrant status may therefore become a necessity.

An H-1B worker who is laid off and attempts to find a new H-1B employer to file a petition for him is considered out of status if there is even a one day gap between the last day of employment and the date that the new H-1B petition is filed. While some attorneys claim that there is a grace period of 30 days, 60 days, or sometimes 10 days, that is not true according to the law. In practice, USCIS has accepted H-1B transfer applications even with a gap in employment up to 60 days, but that is by no means guaranteed.

Some of the confusion regarding the "grace period" arose because there is a 10 day grace period for an H-1B worker to depart the United States at the end of his authorized period of stay (does not apply for laid-off workers). This grace period only applies if the worker works until the H-1B expiration date listed on his I-797 approval notice, or I-94 card. 8 CFR 214.2(h)(13)(i)(A).

The employer has the legal obligation to pay for the laid-off worker's return transportation.

 Worker protection and law enforcement
For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker must meet or exceed the "prevailing wage" in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing U.S. citizen workers. 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.

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.[52] Ultimately, the employer, not the Department of Labor, determines what source it will use to 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".[53] In FY 2005, only about 800 LCAs were rejected out of over 300,000 submitted. Hire Americans First has posted several hundred first hand accounts of H1-B Visa Harm reports directly from individuals negatively impacted by the program, many of whom are willing to speak with the media.[28]

Enforcement is substandard and there are reports of abusers surviving INS audits unscathed.[54]

In 2009 Federal authorities busted a nationwide H-1B Visa Scam. In October 2008, a USCIS report found that the H-1B program has more than a 20 percent violation rate.[55]

 American Competitiveness in the Twenty-First Century Act of 2000
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H-1B's as indentured servants during the green card process. With PERM, labor certification processing times are now approx 9 months (as of Mar 2010).[56]

Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, if the position they are moving to is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times will improve, but the person will also lose their favorable priority date. In those cases, employers' incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.

However, many people are ineligible to file I-485 at the current time due to the widespread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.

On May 25, 2006 the U.S. Senate passed immigration bill 2611, which contained several increases in the number of H-1B visas, including:

Raising the base quota from 65,000 to 115,000,
Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it,
Adding 6,800 visas for trade agreements separate from the base quota,
Adding 20,000 visas for those with foreign graduate degrees,
Raising from 20,000 to unlimited the number of visas for those with U.S. graduate degrees, and
Making visas to non-profit organizations exempt from the quota.[57][58][59]
However, as the House refused to consider the measure, it died in conference and no H-1B increase was approved in time for the elections.

The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B quota limits, individuals who spent one year outside of U.S. and did not exhaust their entire six year term can choose to be re-admitted for “remainder” of initial six-year period without being subject to the H-1B cap.[60]

The USCIS has also announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens.[60]

On May 24, 2007, the Senate considered amendments to the Comprehensive Immigration Reform bill[61] (S. 1348)[62] including the Sanders Amendment to increase the H-1B Scholarship & Training Fee from $1500 to $8500 (for H-1B employers with more than 25 full time employees). The additional fee was to be used for training and scholarship programs and in addition to other existing fees. Senator Sanders listed the Teamsters Union and the AFL-CIO among supporters of his amendment. Without this amendment, Senator Sanders (I-VT) said, "skilled middle class and upper middle class Americans" would be hurt, and their wages would continue to be suppressed. Just prior to the vote, Senator Sanders announced that he had made changes to his amendment, dropping the fee for H-1B visas from the $8500 he proposed earlier, down to $5000. Following Senator Sanders’ announcement, Senators Kennedy and Specter expressed their support for the bill and the amendment passed by a vote of 59–35.[63] Compete America, a coalition of U.S. tech companies, reported the passage of the Sanders amendment will "accelerate outsourcing and undermine U.S. economic growth."

The Consolidated Natural Resources Act of 2008, which, among other issues, federalizes immigration in the Commonwealth of the Northern Mariana Islands, stipulates that during a transition period, numerical limitations will not apply to otherwise qualified workers in the H visa category in the CNMI and Guam.[64]

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (“stimulus bill”), Public Law 111-5.[65] Section 1661 of the ARRA incorporates the Employ American Workers Act (“EAWA”) by Senators Sanders (I-Vt.) and Grassley (R-Iowa) to limit certain banks and other financial institutions from hiring H-1B workers unless they had offered positions to equally- or better-qualified US workers, and to prevent banks from hiring H-1B workers in occupations they had laid off US workers from. These restrictions include:

The employer must, prior to filing the H-1B petition, take good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage at least as high as what the law requires for the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies who is equally or better qualified for the position.
The employer must not have laid off, and will not lay off, any U.S. worker in a job essentially 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.[66]

 

Recent Changes to U.S. Policy
USCIS (U.S. Citizenship & Immigration Services) recently issued a Memoranda dated 8 Jan 2010. The memoranda effectively states that there must be a clear "employee employer relationship" between the petitioner (employer) and the beneficiary (potential Visa holder). It simply 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.

Some argue that this has effectively "killed the job-shop industry". While it is clear that the number of Visa petitions granted has declined (or is slower than normal to reach the full quota), it is not clear whether or not this is a result of simple political pressure to put the program on "hold", or a long-term result from real economic realities. The Memoranda gives three clear examples of what is and is NOT considered a valid "employee employer relationship".

an accountant working on and off-site to work
a fashion model
a computer software engineer working off-site
In the case of the software engineer the petitioner (employer) must simply agree to do (some of) the following among others:

supervise the beneficiary off-site & on-site
maintain such supervision through calls, reports, or visits
have a "right" to control the work on a day-to-day basis if such control is required.
provide tools for the job
hire, pay and have the ability to fire the beneficiary
evaluate work products and perform progress/performance reviews
claim them for tax purposes
provide (some type of) employee benefits
use "proprietary information" to perform work
produce an end product related to the business
have an "ability to" control the manner and means in which the work product is accomplished.
It further states that "common law is flexible" in how these factors are to be weighed.

Although this memoranda cites legal cases and provides examples, such a memoranda in itself is not law a

 


 

 

 
 
 
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