H-1B visa

The H-1B visa program allows American companies and universities to employ foreign scientists, engineers, programmers, and other professionals in the United States.

Related Topics:
American - Scientist - Engineer - Programmer

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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.

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There are generally 2 exceptions to the 6 year duration of the H-1B visa:

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• If a visa holder has submitted an I-140 petition or a labor certification prior to her 5th year anniversary of having the H-1B visa, she is entitled to renew her H-1B visa in 1 year increments until there is a decision on her permanent residence.
• If the visa holder has an approved I-140 petition after the 5th year anniversary, but is unable to initiate the final step of the green card process due to priority date issues, she may be entitled to a 3 year extension of her H-1B visa. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000http://uscis.gov/lpBin/lpext.dll/inserts/publaw/publaw-22369?f=templates&fn=document-frame.htm#publaw-pl106313.

The program has been criticized domestically for allegedly displacing American workers, as a form of corporate welfare and by the source countries for encouraging brain drain. However, advocates claim the program (and similar ones operated by other technologically-advanced countries) provides an incentive for companies not to move their operations abroad. Earnings remitted by foreign workers are a major source of income for some developing countries, easing their burden of debt.

Related Topics:
Brain drain - Debt

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The number of new H-1Bs issued each year in the United States is subject to an annual quota. This annual quota has had a significant impact on the hi tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and nonprofits. During the early years of this quota, the early 1990's, this quota was rarely actually reached. By the mid-1990's, 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 response to the very hot hi-tech market of the late 1990s, the quota was increased first to 130,000 and then, in 2000, to 195,000 visas per year. This increase in the quota seemed to play a role in oversaturating an already softening hi-tech job market. During the years the quota was 195,000, it was never reached, and the availability of hi-tech jobs in the USA plummetted as there was just too much competition for positions.

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In 2003, the quota was allowed to quietly revert to 65,000 when the temporary increase 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 US advanced degrees. Of the 65,000 total, 6,800 are reserved for citizens of Chile and Singapore under free trade agreements with those countries. 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.

Related Topics:
Chile - Singapore - Australian - E-3 visa

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As noted above, the program is controversial. H-1Bs have sometimes been described as indentured servants, and while the comparison is not entirely accurate, it has some validity. Although the USA 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 may legally and openly be used as a steppingstone to the green card under what is called the doctrine of dual intent. And many H-1B visa holders attempt to do just that. H-1B visa holders must generally (with some exceptions) be sponsored for their green cards by their employers. The sponsorship process can take several years, and for much of that time the H-1B visa holder is unable to change jobs without losing their place in line for the green card.

Related Topics:
Indentured servants - Green card - Dual intent - Green cards

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This creates an element of enforced loyalty to an employer on the part of an H-1B visa holder. Employers often like this enforced loyalty because it reduces the risk of the H-1B employee leaving to go work for a competitor. Critics allege that this puts American citizens at a disadvantage in the job market, because the employer has less assurance that the U.S. citizen will stay at their job for an extended period of time. On the other hand, there are high costs to both H-1B and green card sponsorship in terms of government fees, lawyer fees, and inconvenience, and this tends to balance things out somewhat in favor of American workers.

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There is also a cultural element to the H-1B visa controversy. Many (though definitely not all) H-1B visas are awarded to hi-tech workers. There is a certain sense in U.S. culture that hi-tech workers are somewhat 'geeky' or 'nerdy' and not necessarily representative of a career that the best and brightest Americans should aspire to, despite the high levels of quality education that many hi-tech workers have. In other cultures, notably India and China, hi-tech workers command much more respect due to their ability to earn a good income. In encouraging the use of H-1B visas liberally in the hi-tech field, but not nearly as much in other fields, Congress and the President are, in a sense, legislating this cultural divide between the US and other countries. American workers in hi-tech are much less protected by Congress and the President against foreign competition than are U.S. workers in other fields, and this appears to be partly a cultural matter. The image of the geeky, but loyal, hi-tech worker is somewhat at odds with the American ideal of a powerful, rugged individualist, and government policy in the US actively discourages pursuit of hi-tech careers by Americans in this way.

Related Topics:
India - China - Congress - President

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Common misconceptions about H1B

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There are many popular misconceptions about H1B workers.

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1. H1B workers pay no US taxes, or are paid in their home country to avoid US tax.

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H1B workers pay the same taxes as any other US resident.

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Any person that spend more than 183 days in the US in a calendar year is a

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tax resident and is required to pay US taxes on their worldwide income. From

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the IRS perspective, it doesn't matter if that income is paid in the US

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or elsewhere.

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2. H1B workers do not pay social security taxes.

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Again, H1B workers pay the same taxes as any other person residing

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in the US, including Social Security and Medicare.

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3. H1B workers are given living allowances that are free of taxes.

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H1B workers pay the same taxes as any other person residing

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in the US. If an H1B worker is given a living allowance, it is treated the

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same by the IRS as any other US resident.

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4. H1B workers are unable to change jobs, and employers can exploit this

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as H1Bs are effectively 'indentured servants'.

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Since the signing of the American Competitiveness in the 21st Century

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Act in 2000, an H1B holder may change employers at any time by filing a

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H1 transfer. The H1B holder can commence at the new employer immediately

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rather than having to wait for the USCIS to process the transfer. This

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limits the ability of an unscrupulous employer to exploit employees on

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H1B visas as 'indentured servants'.

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If an employer sponsors an H1B for a green card, then there is a

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period of time for visa processing during which the H1B holder

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cannot change employment without forfeiting the green card process.

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They would however retain H1 status. As of late 2005, the time

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required for PERM labor certification approval and filing of an I140

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is approximately twelve months.

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5. Employers can sue H1B holders if they leave.

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Suing employees for leaving is generally difficult under US labor laws, regardless of whether

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the employee is an H1B holder, a permanent resident or a US citizen. Although

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any employer can make this threat, the legal history of employers who have

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attempted to sue or otherwise claim money from H1B employees shows that

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such claims are rarely successful. In 2001 San Mateo County Superior

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Court Judge Phrasel Shelton ruled in an H1B employees favor on the unfair

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competition statute and ordered the employer to drop restrictive language

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in its employee contracts.The H1B employee in the case was awarded

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over $200,000 in fees and damages. In 2002 the employer appealed the decision

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and lost.

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In addition, Department of Labor's H1B regulations issued in 2001

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prohibit employers from making an H-1B employee pay a penalty for

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quitting prior to an agreed upon date.

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6. H-1B's can sponsor their own visa or have their own company on the side.

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This is not true. According to the USCIS site at http://uscis.gov/graphics/howdoi/h1b.htm

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"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

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rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for

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more than one U.S. employer, but must have a Form I-129 petition approved by

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each employer."

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