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H-1B
www.usimmigrationinfo.com
E-mail:
donrandles@gmail.com
NEWS FLASH!!
H-1Bs
AT A GLANCE
What
are H-1Bs?
·
Temporary:
H-1Bs
are temporary foreign professionals hired by a U.S. employer.
·
Highly
skilled: H-1Bs
can be hired only for "specialty occupations," those jobs requiring
the equivalent of at least a bachelor's degree in the field.
·
Professionals:
H-1Bs must be professionals such
as doctors, engineers, professors, accountants, lawyers, physical therapists,
and computer professionals.
How
Many Enter and Where Do They Come From?
·
Under
current law, no more than 115,000 H-1B visas can be issued in the next two
years, with the cap dropping to 107,500 in 2001.
After 2001, the cap drops to 65,000 per year.
Even with these numbers, H-1B temporary professionals comprise less than .1%
of the U.S. workforce of more than 127 million people.
The top 5 source countries for H-1B's currently are India, the United
Kingdom, Japan, Philippines and Germany.
Why
Do Employers Hire H-1Bs?
·
Needed
skills and Temporary Shortages: Employers
hire H-1B professionals to obtain essential technical skills or knowledge that
is relatively unique and not readily found in the U.S. or to fulfill temporary
shortages of needed skills.
·
Global
market expertise: Employers
often need H-1B professionals to bring special expertise in overseas needs,
markets or trends that enables U.S. businesses to compete globally.
What
Must Employers Do?
·
Protect
wages: Employers
must pay a wage to every H-1B worker that is at least as much as what is
typically paid in the region for that type of work (“prevailing wage”), or
what the employer pays existing employees with similar experience and duties.
·
Protect
working conditions: Employers
cannot use H-1B professional to break a strike, and must notify their U.S.
workforce when they hire an H-1B professional.
Employers cannot make the H-1B non-immigrants work under conditions
different from their U.S. counterparts, including hours, shifts and benefits.
·
Recruit
in the U.S. and Not Displace U.S. workers: Employers
who use a lot of H-1Bs must first try to find U.S. workers before they can hire
an H-1B. They also must attest that
they are not hiring the H‑1B if they have laid off or displaced a
similarly situated U.S. worker. Employers
must attest to the above protections by affirmatively filing with the Department
of Labor (DOL) and by maintaining a file open to the public.
·
Be
subject to penalties: Failure to
comply with DOL regulations can result in an audit, civil and administrative
penalties, payment of back wages, and even debarment from participating in key
immigration programs.
THE
H-1B PROGRAM:
AMERICA’S HOME COURT ADVANTAGE IN GLOBAL COMPETITION
THE
ISSUE:
The H-1B program is a prompt, lawful way for U.S. employers to hire
foreign-born professionals on a temporary basis. This program allows U.S.
business to recruit and hire the best-qualified candidates from around the
world, and compete on a level playing field with foreign companies in such key
industries as high-tech, manufacturing, pharmaceuticals, biotechnology, and
education.
BACKGROUND:
Who are H-1Bs? H-1Bs are
temporary foreign professionals hired by U.S. employers. They can only be hired
for “specialty occupations,” which are defined under the law as jobs that
require a professional who has the equivalent of a bachelor’s degree in their
field of specialty. Examples are doctors, engineers, professors, accountants,
researchers, medical personnel and computer professionals.
What
does the Employer Need to Do?
A U.S. employer using this program must guarantee that 1) the foreign
professional will be paid at or above the rate paid for a similar position at
the employer’s own offices, or at those of their local competitors; 2) the
foreign professional will not adversely affect the working conditions of U.S.
colleagues; 3) U.S. colleagues will be given notice of the professional’s
presence among them; and 4) there is no strike or lockout at the worksite.
The employer also must demonstrate that the position requires a
professional in a specialty occupation and that the intended employee has the
required qualifications.
The
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) increased
the number of H-1B visas (no more than 115,000 new admissions each year for FY99
and 2000, 107,500 in 2001, and 65,000 after that). ACWIA also added new
requirements for employers who use a higher percentage of H-1B workers
(including that companies first recruit in the United States, and not lay off
American workers before using the H-1B program). ACWIA stiffens the punishments
for companies that violate the law. The new punishments include fines of up to
$35,000, a three-year bar from participating in visa programs, and repaying
salaries of any under-paid foreign professionals. ACWIA further requires
employers to pay a fee of $500 per visa to fund education and training programs
for U.S. workers.
Why
is the H-1B program essential?
U.S. employers use the H-1B program to hire foreign professionals with
highly needed skills. Employers typically hire H-1B professionals for three
reasons:
-
Needed
skills – To obtain essential skills or rare and unique knowledge;
-
Global
market expertise – For their special expertise in overseas needs, markets,
trends or distribution, allowing U.S. businesses to compete in global
markets; and
-
Temporary
shortages - To fill temporary shortages of needed skills.
No
employer would go through the extra burdens, costs and delays of hiring a
foreign professional worker unless they could not find the skills they need
among U.S. workers. If American
companies are prevented from hiring essential people to fill critical positions,
an increasing number
of jobs dependent upon these slots will go unfilled each year, resulting in
American jobs being lost and American projects losing out to foreign
competition. As the U.S. economy becomes increasingly global, H-1B professionals
become even more essential to America’s continued economic growth.
CURRENT
STATUS:
ACWIA increased the number of temporary visas through Fiscal Year 2001,
while making significant changes to the program to enhance domestic workforce
protections. However, the increases mandated in ACWIA were insufficient; the
H-1B visa cap was reached well before the end of FY1999.
It is expected that the cap will be reached even earlier in FY2000.
AILA supports the following bills introduced this year to increase the
H-1B limit:
S.
2045:
Senators Orrin Hatch, Spencer Abraham, Phil Gramm, Dianne Feinstein, Bob Graham,
and others, introduced the American Competitiveness in the 21st
Century Act on February 9, 2000. This
bill would increase the H-1B cap to 195,000 for FY2000, 2001 and 2002.
The bill also would exempt from the cap H-1B nonimmigrants employed by
higher educational institutions and research institutions, and foreign graduates
of U.S. masters and doctoral degree programs sponsored by U.S. employers within
six months of their graduation. Because
of support from Senators Hatch, Abraham and Gramm, this bill appears to be the
vehicle through which the Senate will address this issue. AILA strongly supports
this bill.
H.R.
3983:
A bi-partisan group of Representatives, led by David Dreier (R-CA), Chair
of the House Rules Committee, and Zoe Lofgren (D-CA) introduced the “Helping
to Improve Technology Education and Achievement” or “HI-TECH Act” on March
15, 2000. The bill has strong bi-partisan support of such key members as
Representatives Tom Davis (R-VA), the chairman of the Republican Congressional
Campaign Committee, and Representative Patrick Kennedy (D-RI), chairman of the
Democratic Congressional Campaign Committee. The bill would increase the limit
on H-1B visas to 200,000 for FY2001, 2002 and 2003, and would “set aside”
10,000 of the 200,000 visas for employees of higher educational institutions,
and government and non-profit research institutions, and 60,000 visas for
individuals who hold masters or higher degrees (or their equivalent). The bill
also would deal with problems resulting from the per-country limits in business
immigration by allowing unused visas to spill over to oversubscribed countries.
Another provision in the bill allows applying “carryover visas” from FY1999
that were counted against the FY2000 cap back to FY1999, thereby having fewer
carryovers for this year. Finally, the bill would increase the fee for initial
petitions from $500 to $1,000. AILA
strongly supports this bill, while concerned about the impact of an increased
fee on non-profits, small businesses and state and local governments that are
increasingly using the H-1B program. Because of the strong bi-partisan support
for this bill, and the support of Democratic and Republican party leadership, it
is likely that this bill will be this is session's House H-1B vehicle.
AILA
and the business community strongly oppose H.R.
3814, the “Technology Worker Temporary Relief Act” introduced by
Representative Lamar Smith (R-TX), Chair of the House Immigration Subcommittee
on March 2, 2000. The bill purports
to grant an additional 45,000 visas only for Fiscal Year 2000, to be available
only after the current cap is reached, and only after the Department of Labor
issues final regulation implementing ACWIA.
Not only would this bill hold the additional visas hostage to the
Department of Labor, which has expressed opposition to the program in the past,
but 45,000 visas would not even cover the expected carryover of visas from last
fiscal year to this one. The bill
also would require employers applying for these visas to document: (1) they have
increased the total number of U.S. workers employed in the last year; (2) their
total payroll to U.S. workers has increased in the last year; and (3) their
median wage has increased in the last year.
In addition, the bill would permanently change the H-1B category,
requiring sponsoring employers to have at least $5,000,000 in gross assets,
requiring H-1B nonimmigrants to be in full-time employment, and eliminating the
availability of work experience equivalence to a required bachelor’s degree.
These provisions would render the H-1B program unusable for small
businesses and startups, the very employers driving the engine of our economy
today.
AILA’s
POSITION:
AILA believes that the H-1B cap is a cap on U.S. economic expansion. If
U.S. employers cannot quickly and efficiently hire the workers they need to
develop new products, create ground-breaking research, implement new projects,
and expand their operations, they will be at a competitive disadvantage with
foreign countries with less restrictive immigration policies. The European Union
and Asia are becoming America’s largest competitors in global markets, partly
because their policies allow companies to hire foreign professionals with
exceptional talents and abilities. All U.S. industrial sectors face increasing
competition from abroad and increasing job shortages. Further restrictions on
the H-1B program will only encourage America’s competitors.
Now more than ever America needs the ability to hire highly skilled
employees. AILA strongly supports
S. 2045 and H.R. 3983, and strongly opposes H.R. 3418.
If you are a professional, this is
a great time to find a job in the United States and work with an H-1B
visa. The visa is good for up to six years in the United States.
You can either pick up your visa in your country or from the immigration
office in the United States if you are here with valid status on another
visa. You can bring in your family and you can make multiple entries
and departures from the U. S. while you have the visa. The cap doesn't
cover existing visa holders. We can help you with your visa
extension. Once you are in and working for a while, you may be able to
get a Green Card through the Labor Certification process. If you
have questions, give me a call and we'll get you started on getting an H-1B
visa.
This is a non-immigrant visa which
entitles an applicant to work and live in the United States for a total of six
(6) years. The visa is available to parties in specialty occupations or
professions. The requirement is a minimum of bachelor's degree or a total
of 12 years working experience in that party's area of expertise, which can
equate to a bachelor's degree.
The H-1B applicant must receive a
job offer from a business in the U.S.A. and that job offer must be within the
applicant's area of expertise and/or degree qualifications.
This visa is amongst the best visa for entry to
the U.S.A. whereby the alien can work for an extended period of time. This
visa has no requirement that the alien need return to his/her home country
for 2 years as in a J-1 visa . Further the H-1B visa has a dual intent .
This means that the alien does not need to prove that he/she will return to
their home country after expiration of their visa, Furthermore
many H-1b visa holders apply for permanent residence in the U.S.A. through
the process known as Alien Labor Certification and in some instances the
H-1b holder is exempt from this process and can file directly for permanent
residence , Currently Congress is
considering raising the annual limitation from 115000 visas per year to
200000 visas per year. This is clearly indicative of the need for foreign
professionals in many areas of the economy. Each
individual's circumstances are different and we suggest that you contact us
so that we may evaluate your credentials regarding your eligibility for the
H-1B visa. Our telephone number is (702) 382-3335.
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