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H1-B Visa
The H-1B is a non-immigrant visa category in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to seek temporary help from skilled foreigners who have the equivalent U.S. Bachelor's Degree education. H-1B employees are employed temporarily in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation". A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts may be considered to be specialty occupations.
The actual size of the H-1B program is difficult to gauge due to exemptions from the 65,000-person quota limit. 130,497 new H-1B visas were approved in FY 2004 and 116,927 in FY 2005. It was reduced to 65,000 beginning in 2006. This cap, however, does not apply to non-profit organizations or higher-education institutions. The demand for H-1B employees is so high that American corporations have filed for H-1B applicants, six months in advance of issuing the visa in 2007. Nonetheless, previously unavailable data indicates that demand for H-1B visa was substantially higher among Indian outsourcing firms with a workforce based primary in India. 7 of the top 10, receivers of H-1B visas were Companies engaged in this practice. Among the top ten, only Microsoft, IBM, and Oracle have H-1b demand that is even remotely close to the Indian outsourcing firms. USCIS has received over 130,000 applications from U.S. corporations for the 2007-2008 year quota of 65,000. Fortunately, the H-1B visa is not the only means for U.S. employers to lawfully hire skilled foreign nationals The list of the top 200 receivers of H-1B visa in 2006 has recently been made available for the first time, however the number of applications that were submitted unsuccessfully for each company remains unpublished. However, data suggests that companies that engage in offshoring work to India submitted H-1B visa applications in heavy volume. For instance, it is known that Infosys and Wipro submitted approximately 20,000 applications in 2006.
The H-1B visa program is controversial Advocates say the program (and similar ones operated by other technologically-advanced countries) helps the host country maintain its technological as well as economic superiority by providing a steady flow of highly skilled professionals who may be in short supply domestically. It also provides an incentive for companies not to move their operations abroad. Recent data suggests, that this intent is not the guaranteed outcome.
The H-1B program has been criticized for displacing substantial numbers of experienced American citizen technical professionals or lowering wages enough to encourage them to abandon volatile careers in targeted fields such as computer technology. Although there are differing views on whether or not the H-1B visa is good for the U.S. economy, economist Milton Friedman has called the program a form of subsidy. Currently the number of H-1B visas issued per year is limited to 65,000 with an additional 20,000 for those with U.S. graduate degrees and no limit for universities and non-profit and government research laboratories.
Other critics have argued that H-1B programs are distorting market forces within the U.S. by incentivising Indian nationals to flood U.S. graduate schools to earn Advanced degrees solely for the purpose of obtaining work visas, and at the same time de-incentivising U.S. citizens from earning technical degrees or continuing on to earn graduate degrees due to applicant pool flooding. For instance, at the undergraduate level, US-born engineering students constitute upwards of 90-95% of the student population, with a student pool that is larger than the number of foreign born nationals who apply to engineering graduate schools to earn advanced degrees. Yet, upwards of 50% of the advanced degrees conferred in technology are to foreign-born nationals.
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B stay beyond the 6-year maximum period, when: 365 days or more have passed since the filing of any application for Labor Certification, that is required or used by the alien to obtain status as an employment-based immigrant, or 365 days or more have passed since the filing of an employment based immigrant petition.
H-1B visas are employer-specific, and 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 rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. Employer, but must have a Form I-129 petition approved by each employer. As Immigration Solutions Group reports, government filing fees will increase substantially on July 30, 2007 and may again increase dramatically if congress passes legislation seeking to increase filing fees for H-1Bs from 1,500 to $5,000 towards scholarships.
An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status. It was also blamed for encouraging brain drain in the source countries.
H-1B holders are allowed to bring their spouses to the USA on H-4 visas at any time, however spouses are not permited to work while under an H-4 visa.
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