H-1B Visa

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The H-1B nonimmigrant visa program allows employers to hire foreign workers for specialty and professional occupations under conditions approved by the U.S. Department of Labor. 

I. H-1B VISA
The H-1B nonimmigrant visa allows temporary employment of foreign workers in specialty occupations.1 These jobs require “theoretical and practical application of a body of highly specialized knowledge, along with at least a bachelor’s degree or its equivalent in the specialization.”2 As with some of the other temporary worker programs, the employer must petition the government for permission to hire H-1B workers. 
 
The employer begins the process by filing a Labor Condition Application (LCA) with the U.S. Department of Labor (USDOL) that details the job type, length, location and salary.  The salary must be the greater of either the actual wage paid to similarly situated U.S. workers or the prevailing wage determined by USDOL’s surveys of the industry. In most instances, employers do not have to make any effort to recruit U.S. workers.3 However, employers whose workforce is predominantly made up of H-1B workers and employers who have willfully violated H-1B program rules in the past are each required to attest that recruitment has occurred and that U.S. workers have not been displaced.4 After receiving the approved LCA, the employer files a petition for the H-1B worker with the U.S. Department of Homeland Security, U.S. Citizen and Immigration Services (USCIS).  After the H-1B petition is approved, the foreign individual applies for his or her H-1B visa from the U.S. Department of State’s visa processing post abroad, which is usually the U.S. Consulate or Embassy.  
 
Once the visa is issued, the individual seeks entry at the U.S. border or port of entry from the U.S. Department of Homeland Security, Customs and Border Patrol.  Once admitted, the H-1B worker is allowed to work only for the employer who obtained USDOL and USCIS approval. There is an annual cap of 65,000 for H-1B workers, with 20,000 additional visas set aside for workers who have graduate degrees from U.S. institutions.  Most H-1B jobs are in computer-related occupations and most H-1B workers come from India.
 
 
A. History
The H-1B visa was created with the passage of the Immigration Act of 1990.5 The H-1B category replaced the old H-1 category reserved for foreign individuals of distinguished merit and ability.6 While the old H-1 category was for the “best and the brightest” in reality the visa had devolved to “simply require that the worker be in a profession that required a Bachelor’s degree or higher.”7 The 1990 H-1B visa was designed to make the conditions for the visa more precise, add protections for U.S. workers, and allow H-1B workers to apply for permanent immigration status.8 The U.S. worker protections included an annual cap of 65,000 H-1B visas and requiring employers to file Labor Condition Applications (LCA) with the U.S. Department of Labor (USDOL) certifying that H-1B workers would be paid the prevailing wage.9 In 1991, Congress clarified that USDOL’s role was restricted to reviewing the LCA only for obvious error.10
 
In 1998, the H-1B visa was changed slightly after a period of intense lobbying from the computer industry, which had been a heavy H-1B user since the program’s inception.11 The annual cap increased to 115,000, but the program added several more U.S. worker protections.  First, a subcategory of “H-1B dependent” employers were now required to recruit U.S. workers before seeking H-1Bs and attesting that U.S. workers had not been - and would not be - displaced by foreign workers.12 Furthermore, the 1998 change established H-1B user fees of $750 to $1,500 to fund “retraining programs” for U.S. workers and commissioned a study of discrimination against older U.S. workers by H-1B employers.13 In 2000 the annual cap for H-1B workers was again increased, to 195,000 this increase expired in 2003.14
 
The H-1B Visa Reform Act of 2004 reinstituted the annual cap for new H-1B visas to 65,000 and reserved an additional new 20,000 visas for foreign workers with at least a masters degrees from a U.S. institution.15 That same legislation created a fraud prevention fee of $500.16 There have been no significant changes to the H-1B program since 2004, although there have been many proposals under consideration as part of the movement for comprehensive immigration reform.17
 

B. Duration

H-1B visas are initially valid for up to three years depending on the work period approved on the Labor Condition Application. H-1B workers are allowed to be in the U.S. ten days before and ten days after that work period.24 Generally, H-1B visas may be extended another three years, for a total of six.25 At the end of the six-year period, the worker must depart the United States unless he is eligible to change his status by applying for either another nonimmigrant visa or Lawful Permanent Residence (LPR status, also known as a “green card”).  A former H-1B worker who has resided and been physically present outside of the United States for at least one year may be eligible for a new H-1B visa and another six- year period of admission to work in the U.S.26

 
C. Nonimmigrant Intent Not Required
Unlike other temporary work visas, the H-1B visa does not require nonimmigrant intent.27 Prospective H-1B workers do not have to show ties to their native countries proving the intention to return home.  In other words, the temporary H-1B worker may seek to permanently immigrate to the United States.  Usually, if an H-1B worker later applies for LPR status based on employment, it is through the same employer that initially petitioned for the H-1B visa.  It is possible, however, for a new employer to sponsor an LPR application for the H-1B worker. 
 
1. Employment-based Legal Permanent Resident status
There are five priority levels for employment-based permanent immigration.28 The first level, known as EB-1, is reserved for the highest-skilled workers with extraordinary ability, outstanding professors or researchers, and multinational executives or managers.  The second level, EB-2 is for professionals with advanced degrees or exceptional ability. The third level, EB-3 is for skilled workers, professionals or unskilled workers for jobs that are neither temporary nor seasonal.  The fourth level, EB-4 is for various special immigrants specified in the regulations, including for example religious workers, broadcasters, members of the armed forces, and Iraqi/Afghan translators.  The fifth level, EB-5 is for immigrants who invest a certain minimum amount of money in projects or enterprises that create U.S. jobs.  Depending on the nationality of the immigrant, there may be a lengthy waiting period before an employment-based visa is available once a completed application is submitted.  Two factors determine this:  the priority level and the country of origin. 
 
 
D. Annual Cap On H-1B Visas
There is a limit to the number of new H-1B visas available each fiscal year.32 This numerical limit is commonly referred to as the “annual cap.”  In 2013, the annual cap is 65,000.33There are certain exceptions, however.  Workers employed by an institution of higher education, its related nonprofit entity, or a nonprofit, governmental research organization are not subject to the cap.34 Moreover, an additional 20,000 visas are designated for workers with a U.S. master’s degree or higher.35
 
Furthermore, there is no numerical limit on H-1B visa extensions or employer changes for workers who are already in the U.S. and continuing in H-1B status.36 Petitions to become a new employer of a current H-1B worker do not count against the cap either.  The initial visa was already tallied as part of the cap in the first fiscal year nonimmigrant status was granted.  The annual cap has been a source of controversy since the H-1B visa was created in 1990, and has changed periodically according to Congressional action.  
 
1. H-1B1 Visa Program for Chile and Singapore
In 2003, Congress created a new nonimmigrant classification called H-1B1, and made these visas available each fiscal year for up to 1,400 professionals from Chile and 5,400 professionals from Singapore.37 The H-1B1 visas still fall within and count against the general H-1B cap and are governed by most of the same regulations.38 While H-1B1 employers must submit an LCA to USDOL, they do not have to petition USCIS for permission to hire H-1B1 workers.  Rather, the worker presents “evidence for classification” with their visa application, directly to the consular officials at the U.S. State Department location abroad.39
 
E. H-4 Visa For Dependents
The H-4 visa category is available for spouses and minor children of H-1B workers to stay in the U.S. as long as the H-1B visa is valid.  The U.S. State Department consular official may take steps to verify that the H-1B worker is in fact maintaining his or her status in the United States before granting the family member’s H-4 visa.40 The family members are not eligible to work.41
 
  • 1. 8 U.S.C. § 1101(a)(15)(H)(1)(B), 8 U.S.C. § 1182(n). H-1B visas are also appropriate for fashion models of distinguished merit and ability. This Visa Page does not delve into issues involved with fashion models. For a discussion of the history of hiring foreign fashion models, with criticism and suggested policy changes, see Kit Johnson, Importing the Flawless Girl, 12 Nevada Law Journal 831 (Summer 2012).
  • 2. 8 C.F.R. § 214.2(h)(4)(iii)(D).
  • 3. U.S. Department of Labor, Strategic Plan: Fiscal Years 2006-2011, at 35, (2006) (“H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker”), available at http://www.scribd.com/doc/1628441/Department-of-Labor-strat-plan-20062011. While this strategic plan has been updated, the underlying law has not.
  • 4. See, e.g., R. Wasem, Immigration of Foreign Workers: Labor Market Tests and Protections, at 17, Congressional Research Service (Dec. 20, 2010), available at http://assets.opencrs.com/rpts/RL33977_20101220.pdf.
  • 5. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990); for a thorough listing of legislative history of the H-1B program see also GAO-11-26, Appendix V., at 100-102.
  • 6. Norman Matloff, On The Need for Reform of the H-2B Non-Immigrant Work Visa in Computer-Related Occupations, 36 Univ. of Mich. Journal of Law Reform 1, 4 (2003). The original language of the H-1 category which was replaced was for any nonimmigrant “of distinguished merit and ability and who is coming temporarily to the United States to perform services (other than services as a registered nurse) of an exceptional nature requiring such merit and ability, and who, in the case of a graduate of a medical school coming to the United States to perform services as a member of the medical profession, is coming pursuant to an invitation from a public or non- profit private educational or research institution or agency in the United States to teach or conduct re- search, or both, at or for such institution or agency.’’ See Pub. L. 101–649, § 205(c)(1) (1990).
  • 7. Id.
  • 8. Id., citing to Constantine Potamianos, The Temporary Admission of Skilled Workers to the United States under the H-1B Program: Economic Boom or Domestic Work Force Scourge?, 11 Geo. Immigr. L. J. 789, 796 (1997).
  • 9. Id. at 5.
  • 10. Immigration Technical Corrections Act of 1991, Pub. L. No. 102-232, tit. III, § 303(a)(7)(B)(iii), 102 Stat. 1742, 1747, codified at 8 U.S.C. § 1182(n)(1)(G).
  • 11. American Competitiveness and Workforce Investment Act of 1998 (“AWCIA”), Pub. L. No. 105-277, Title VI (1998).
  • 12. Matloff, 36 Univ. of Mich. Journal of Law Reform at 11.
  • 13. Id. at 11-12. The study commissioned by the 1998 law was completed in 2000 and found that “H-1B workers indeed tended to be paid less than comparable Americans, and that older IT workers indeed faced major obstacles in finding work in the field, even during boom times.”
  • 14. American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. No. 106-313 § 102, 14 Stat. 1251 (2000). See 8 U.S.C. § 1184(g)(1)(A) for a list of the annual cap history.
  • 15. H-1B Visa Reform Act of 2004, Consolidated Appropriations Act, Pub. L. 108-447, § 425 (2005).
  • 16. H-1B Visa Reform Act of 2004 § 426 (2005).
  • 17. E.G. The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, § 1611 (2009) mentions the H-1B program insofar as employers receiving TARP funding may not hire H-1B workers unless the requirements for H-1B dependent employers in 8 U.S.C. § 1182(n)(3) are met.
  • 24. 8 C.F.R. § 214.2(h)(13)(i)(A) (However, “the beneficiary may not work except during the validity period.”).
  • 25. 8 U.S.C. § 1184(g)(4); 8 C.F.R. § 214.2(h)(15)(ii)(B)(1). Some workers are exempt from the 6-year maximum period of admission and may stay for longer. American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Pub. L. No. 106-313, 114 Stat. 1251.
  • 26. 8 C.F.R. § 214.2(h)(13)(iii)(A); 9 FAM 41.53 N13.1.
  • 27. 8 C.F.R. § 214.2(h)(16).
  • 28. U.S. Citizenship and Immigration Services, Permanent Workers, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7.... The USCIS website has a page dedicated to each of the five employment based visa (green card) categories.
  • 32. The fiscal year runs from October 1 through September 30.
  • 33. 8 U.S.C. § 1184(g)(1)(A)(vii).
  • 34. American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. No. 106-313, §§ 102- 106, 114 Stat. 1251, 1251-55, codified at 8 U.S.C. §1184(g)(5)(A),(B).
  • 35. H-1B Visa Reform Act of 2004, Pub. L. No. 108-447, div. J, tit. IV, subtit. B, §§ 422, 424 and 425(a) 118 Stat. 3353, 3353-56, codified at 8 U.S.C. § 1184(g)(5)(C).
  • 36. 8 U.S.C. §1184(g)(7).
  • 37. United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, § 402(b)(2)(B), 117 Stat. 909, 940 (2003) and the United States-Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78, § 402(1), 117 Stat. 948, 970-71; 9 FAM 41.53 N26.1.
  • 38. 9 FAM 41.53 N26.8 (describing visa application procedures for prospective H-1B1 workers).
  • 39. 9 FAM 41.53 N26.2.
  • 40. 9 FAM 41.53 N17.2.
  • 41. 8 C.F.R. § 214.2(h)(9)(iv); 9 FAM 41.53 N17.3.
II. H-1B HIRING PROCESS
Employers petition the U.S. government for permission to hire H-1B workers.  The demand for H-1B visas often exceeds the number available.  To make the process run more smoothly, the U.S. Department of Homeland Security’s U.S. Citizen and Immigration Services (USCIS) developed an April 1 filing deadline for the visas to be issued in time for work during the upcoming fiscal year.  During the past few years, the annual cap has been met within weeks of the April 1 deadline.  However, prior to petitioning USCIS, employers must first submit their Labor Condition Application to the U.S. Department of Labor (USDOL).   Working back from the April 1 deadline, this sets up an annual application cycle requiring recruitment of H-1B workers about a year in advance of the visa’s issuance.  
 
 
A. Steps For Employers
 
1. U.S. Department of Labor –Labor Condition Application
 
The first step in the process is for the employer to submit the ETA Form 9035, the Labor Condition Application (LCA) to the U.S. Department of Labor’s Employment and Training Administration Office of Foreign Labor Certification.43 The LCA must be filed electronically through the iCERT system not more than six months prior to the date work will begin.44 The LCA details the occupation category of the work, the wages, working conditions and benefits offered to H-1B workers, and information about the place(s) of employment.45Employers who are “H-1B dependent” or who have “willfully violated” the H-1B program have additional requirements.46 An employer may request multiple H-1B workers on one single LCA.   
 
a) LCA requirements for all employers
 
The LCA must provide the employer’s name and address, and for the job itself, the wage rate, the “prevailing wage,” length of employment, specific occupation code, job title, the number of workers to be hired, and all work locations. Employers attest to four requirements on the LCA.47
  • The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area. 
  • The employer will provide working conditions that will not adversely affect other similarly employed workers. 
  • At the time of the labor condition application there is no strike or lockout at the employer place of business. 
  • Notice of the filing of the labor condition application with the USDOL has been given to the union bargaining representative or has been posted at the place of business.
Employers sign the LCA with the preparer, if any, and are required to give H-1B workers a copy of the LCA upon request.48
 
(1) Required wage rate 
 
H-1B workers must receive “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or . . . the prevailing wage level for the occupational classification in the area of employment, whichever is greater.”49 The prevailing wage is what is “predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed.”50 USDOL sets the prevailing wage for each job classification and breaks it down into four skill categories: prevailing wages rates are listed on its website.  Regulations direct employers to compare the established prevailing wage “with the actual wage rate for the specific employment in question at the place of employment and must pay the H-1B worker at least the higher of the two wages.”51 The actual wage rate can be the employer’s own salary scale, may be variable, and must be documented.
 
 
 
 
 
 
 
(2) U.S. worker recruitment not required
 
The general rule is that employers do not have to test the U.S. labor market as part of the LCA process.  Employers do not have to advertise the position or recruit U.S. workers.  The U.S. Department of Justice has opined that this is problematic and that employers who seek to hire an H-1B worker should first “be required to ‘test’ the labor market to determine whether qualified U.S. workers are available and to hire any equally or better qualified U.S. workers who apply.”57
 
(a) Super Penalty: No U.S. worker displacement
 
Regulations pertaining to the LCA process do not explicitly prohibit U.S. worker displacement.  However, the enforcement section of the regulations does set out what is known as a super penalty when U.S. workers are displaced.  Any employer who displaces a U.S. worker in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition and is also found to have willfully violated the terms of the LCA or misrepresented a material fact on the LCA is subject to a maximum penalty of $35,000 per displacement.58 Notwithstanding this rule, however, it is commonly accepted as fact that U.S. workers have been displaced by H-1B nonimmigrants.59 In some cases, U.S. workers are even asked to train their replacement H-1B workers before they are laid off.60  While there have been reports of U.S. worker displacement, it is unclear how often the super penalty has been imposed, if ever.  
 
b) LCA requirements for H-1B Dependent Employers and Willful Violators
 
Labor condition applications submitted by employers who are either dependent on H-1B workers or found to have willfully violated the program in the past are subject to additional requirements related to U.S. worker recruitment and non-displacement.61 A dependent employer is defined as an employer with a certain number of H-1B workers.62 The test is based on a sliding scale comparing the number of H-1B and total workers with the employer.  A willful violator is an employer who the USDOL has found to have willfully violated the H-1B program rules within five years of filing the LCA.  Only about three to five percent of employers fall into these two categories.63
 
       
(1) U.S. Worker Recruitment and Prohibition on Displacement
 
H-1B dependent employers and willful violators must show no displacement of U.S. workers in similar occupations, either 90 days before or 90 days after filing the LCA.  If the H-1B worker is employed at a third party worksite, the petitioning employer must ensure that the third-party employer neither displaced nor intended to displace a U.S. worker during that same period.64
 
Additionally, the LCA requires dependent employers and willful violators to make good faith efforts to recruit U.S. workers and offer the job to anyone “who applies and is equally or better qualified for the job.”65 However, these employers merely “attest, rather than demonstrate, that they took good faith steps to hire a U.S. worker.”66
 
 
 
 
 
c) Labor Condition Application - standard of review 
 
USDOL only reviews the Labor Condition Application (LCA) for basic compliance with the instructions; there is not much scrutiny.71 Generally, USDOL has no authority to verify whether the information submitted is accurate.72 Nevertheless, employers must have proof on hand to support the legitimacy of the LCA and maintain a public access file with critical supporting documents.73 At one point in 2003, the Inspector General (IG) found that USDOL added “nothing substantial” to the LCA review process.74  Six years later, the IG once again pointed out that the agency’s limited power “amounts to a review function without any meaningful impact.”75 Indeed, the vast majority of applications are approved.  The approval rate for positions certified has varied between 89% and 97% over the past seven years.
 
2. U.S. Department of Homeland Security – Form I-129
 
After the LCA is approved, the employer submits it along with the Form I-129 Petition for a Nonimmigrant Worker, to the U.S. Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS).  The H-1B petition must also include a copy of the written contract between the employer and the worker beneficiary or a summary of the terms of an oral agreement if there is no written contract.76 H-1B petitions are mailed to one of the USCIS Service Centers for processing, depending on the location of the intended worksite. Upon receipt of a properly filed petition, the USCIS clerk creates the official file of record for the petition. 
 
Each potential H-1B visa holder must be individually named in the employer’s application.77  The beneficiary’s (i.e. the future H-1B visa holder) biographical data -- such as name, date of birth, gender, and country of birth -- is listed on the Form I-129 and entered into a database called the Computer-Linked Application Information Management System. The file is then assigned to an adjudicator who decides if there is enough information in the file to approve or deny the petition, or whether a more evidence is needed.  If the adjudicator needs more information, a request for evidence is sent to the petitioning employer including a deadline for a response.  After petitions are adjudicated, the decision is entered into the computer tracking system and if approved, the visa is ready for consular processing.  Like USDOL, USCIS also has historically had a high approval rate, which took a slight dip in 2010.  
 

a) Fees
 
Employers pay fees to USCIS along with Form I-129.78  At a minimum, there is a $325 filing fee and $500 anti-fraud fee.  There are additional fees of $750 to $1,500 for retraining U.S. workers and $2,000 for employers with 50 or more workers in the U.S. and if more than 50% of the workers in the U.S. are in H-1B or L-1 immigrant status.79  There are exemptions to some of these fees; the exemption supplement determines the final amount paid.80
 
H-1B program fees are the employer’s responsibility and the cost should not be shifted to the workers.81 The statute governing the program even explicitly mentions that the fraud prevention fee is to be paid by the employer.82 Moreover, H-1B regulations clarify that “program costs and fees” are the employer’s business expenses and as such, are the employer’s responsibility.83 An employer may only request an H-1B worker to pay its business expenses when it does not result in the worker earning less than the required wage when it is due.84  Because the required wage must be paid free and clear, an employer violates the regulations when it makes the worker pay for its business expenses and it reduces their wages below the required amount.85
 
b) Extensions and changes for current H-1B workers
 
An employer may apply for an extension of their worker’s visa before it expires as long as there is a currently valid LCA or a new one is filed with USDOL.86 Workers may transfer to a job with a different employer as long as the new employer also files an LCA and then a Form I-129 with USCIS prior to the expiration of the original visa.87 H-1B workers do not need State Department approval once they are already lawfully present in the U.S. with a valid H-1B visa.  Only the USDOL and USCIS are involved with extensions and changes to visas already issued. 
 
3. Third party worksites and the “body shop” employer
 
Some H-1B workers are employed at a third party worksite that is not owned, operated or controlled by the employer.88 In those situations, the petitioning employer who submitted the LCA and Form I-129 to the government on behalf of the H-1B worker is in the role of a middleman or staffing company, what has been commonly referred to as a “body shop.”  Several of the leading Information Technology (IT) companies routinely place thousands of their H-1B workers at third-party worksites instead of at their own places of business. 
 
This practice has led to ongoing problems.89 USDOL has reported that staffing employers were a significant source of wage and hour complaints:  “nearly all of the complaints” in the agency’s Northeast region office, “involve staffing companies” and “the number of complaints is growing.”90 Moreover, a Government Accountability Office report found that “the H-1B program lacks a legal provision for holding employers accountable to program requirements when they obtain H-1B workers through a staffing company.”91
 
USCIS has issued guidance to the adjudicators who decide H-1B petitions to ensure a bona fide employer-employee relationship between the petitioner and the beneficiary.  Placement of H-1B workers in third-party jobs is only allowed when that initial employment relationship is maintained.92 The guidance - known as the Neufeld memo – specifies criteria for a valid employer-employee relationship and focuses on the overarching question of whether the petitioning employer has the “right to control” its H-1B worker.  Ensuring a valid employer-employee relationship, it was thought, would curtail the exploitation of H-1B workers who were placed by employers for at third party worksites.
 
Before signing off on an H-1B petition, USCIS evaluates a host of detailed facts that must be revealed on the Form I-129, such as whether the foreign national will work off-site, who will supervise the H-1B worker on a daily basis, when and how that supervision will take place, who has the authority to hire, pay, evaluate, and fire the worker, and if the employer “will maintain a valid employer-employee relationship with the beneficiary at all times.” Furthermore, each third party worksite must have been listed on the LCA submitted to USDOL.
 
B. Steps For Workers 
 
Employers find foreign workers in many ways, through, for example, their own advertisements and marketing, the worker’s academic institutions, or third-party recruiters.  A prospective H-1B worker will usually apply for the job while abroad.  They may have to attend a recruitment meeting or a training program.  Interviews with the U.S. employer may either be in person if the employer travels abroad or via video or teleconference.98   H-1B program regulations do not require that foreign workers receive any written disclosures setting forth terms and conditions of employment prior to being offered an H-1B job. A formal employment contract is not required.
 
When the worker is hired and the employer’s LCA is approved by USDOL, the employer names the worker as the beneficiary on the nonimmigrant petition submitted to USCIS.   After approval, the prospective H-1B worker applies for the actual visa at a State Department embassy, consulate or visa processing post abroad.  There is no fee at this stage. At the visa interview, the prospective H-1B worker should receive the State Department’s anti-trafficking brochure
 
The consular post will verify that the petition has been approved for the worker by checking the computerized Petition Information Management System.99 USDOL and USCIS approval usually guarantee that the visa application will be accepted unless the consular official obtains new evidence or finds clear error.100  Indeed, the adjusted refusal rate for H-1B visas has been 5% or less for the last seven years.101   
 
 
The final step for workers is to apply for admission to the U.S. at the border or port of entry.  A visa does not guarantee admission to the United States.  The U.S. Department of Homeland Security's Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.102 Workers may depart and re-enter the U.S. with the same H-1B visa without limitation until the visa expires.
 
1. Recruitment Abroad
 
H-1B workers may find out about jobs in the U.S. through third party recruiters. These recruiters may be individuals or business entities and may be based either in the U.S. or abroad.  As with other nonimmigrant visa programs, there is a risk that recruiters may inaccurately represent the job, or make false promises.  There are no H-1B regulations that pertain to recruiters specifically.  There is a rule prohibiting employers from shifting any of the H-1B program costs and fees to the workers.103 However, even so, it is not uncommon for third party recruiters to make prospective H-1B workers pay fees in order to apply for the job.104 An employer should be on notice of these illegal transactions if the recruiter handling the immigration paperwork tells the employer that its participation is “reduced rate” or free.  In fact, if the employer pays less than the fees enumerated on the USCIS website, it is possible that the recruiter has unlawfully shifted those costs of the program to the workers.105
  • 43. 20 C.F.R. §§ 655.700-655.760; see also 20 C.F.R. § 655.730(a) (An employer, or the employer's authorized agent or representative, which meets the definition of “employer” set forth in § 655.715 and intends to employ an H-1B nonimmigrant in a specialty occupation or as a fashion model of distinguished merit and ability shall submit an LCA to the Department.)
  • 44. 20 C.F.R. § 655.720.
  • 45. 20 C.F.R. § 655.730(c)(4); see also 20 C.F.R. § 655.715 (defining place of employment).
  • 46. 20 C.F.R. §§ 655.736-655.739.
  • 47. 8 U.S.C. § 1182(n)(1).
  • 48. 20 C.F.R. § 655.734(a)(3).
  • 49. 8 U.S.C. § 1182(n)(1)(A)(i).
  • 50. See discussion of H-1B wages included in U.S. Department of Labor, OFLC Frequently Asked Questions and Answers, available at http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#h1b1.
  • 51. 20 C.F.R. § 655.731(a).
  • 57. Government Accountability Office, H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program, No. 11-26, p. 107 (Jan. 2011) (hereinafter GAO-11-26).
  • 58. 20 C.F.R. § 655.810(b)(3).
  • 59. Farah Stockman, Outsourced, At Home, Boston Globe (March 31, 2013) (discussing displacement of U.S. workers generally), available at http://www.bostonglobe.com/opinion/2013/03/30/visa-program-has-been-hija... (April 2013); Don Tennant, Claim of 'Policies' to Displace U.S. Workers Is Destined to Backfire, IT Business Edge, (Nov. 2, 2011) (“It is a fact that there are documented cases in which American technology workers have been forced to train their H-1B replacements.”), available at http://www.itbusinessedge.com/cm/blogs/tennant/claim-of-policies-to-disp... (April 2013).
  • 60. Martin Kaste, Who’s Hiring H-1B Workers? It’s Not Who You Might Think, All Tech Considered, NPR (April 3, 2013) (discussing displacement of U.S. workers in context of offshoring/outsourcing debate), available at http://www.npr.org/blogs/alltechconsidered/2013/04/03/176134694/Whos-Hir....
  • 61. 8 U.S.C. § 1182(n)(1)(G); 20 C.F.R. § 655.736 - 739.
  • 62. 8 U.S.C. 11821(n)(3)(A).
  • 63. GAO-11-26, at 19.
  • 64. 8 U.S.C. § 1188(b)(4); 20 C.F.R. 655.738(d).
  • 65. 8 U.S.C. § 1182(n).
  • 66. GAO-11-26, at 9.
  • 71. 8 U.S.C. § 1182(n)(1)(G). See Jessica F. Rosenbaum, Exploiting Dreams: H-1B Visa Fraud, Its Effects, and Potential Solutions, 13 U. of Penn. Journal of Bus. Law, 797, 804 (May 2011) (“The LCA review process is completely automated, and the employer is not required to submit any supporting documentation.”)
  • 72. Government Accountability Office, H-1B Visa Program: Labor Could Improve Its Oversight and Increase Information Sharing with Homeland Security, No. 06-720, at 6, (June 2006), available at http://www.gao.gov/new.items/d06720.pdf.
  • 73. 20 C.F.R. § 655.705(c)(5) (The regulation does not provide examples of the sorts of challenges mentioned); 20 C.F.R. § 655.760 (listing documentation).
  • 74. U.S. Department of Labor, OIG, Overview and Assessment of Vulnerabilities in the Department of Labor’s Alien Labor Certification Programs, No. 06-03-007-03-321, at 4, (Sept. 30, 2003), available at http://www.oig.USDOL.gov/public/reports/oa/2003/06-03-007-03-321.pdf.
  • 75. U.S. Department of Labor, Good jobs for everyone: Performance and Accountability Report, FY 2009, at 274, available at http://www.aila.org/content/default.aspx?bc=1016%7C6732%7C16882%7C34324%...
  • 76. 8 C.F.R. § 214.2(h)(4)(iv)(B).
  • 77. 8 C.F.R. § 214.2(h)(2)(iii).
  • 78. See Form I-129 H-1B Checklist.
  • 79. Petitioners may choose to pay a voluntary $1,225 premium fee to expedite the process.
  • 80. See H-1B Data Collection and Filing Fee Supplement, Form I-129, p. 17-19.
  • 81. 8 U.S.C. § 1182(n)(2)(C)(vi)(II) (violation for employer to require H-1B employee to reimburse or pay employer for fee; employer “may not accept” reimbursement from worker).
  • 82. 8 U.S.C. § 1184(c)(12)(A); see also U.S. Department of Labor, WHD Fact Sheet #62H.
  • 83. 20 C.F.R. § 731(c)(9) (attorney fees and other costs connected to the performance of H-1B program functions – including preparation and filing of LCA and H-1B petition – are business expenses of the employer); see also U.S. Department of Labor, WHD Fact Sheet #62H.
  • 84. 20 C.F.R. §§ 655.731(c)(1) and 655.731(c)(9).
  • 85. 20 C.F.R. § 655.731(c)(11)-(12) (“where the employer depresses the employee’s wages below the required wage by imposing on the employee any of the employer’s business expense(s)” is it considered “an unauthorized deduction from wages even if the matter is not shown in the employer’s payroll records as a deduction.”).
  • 86. 8 C.F.R. § 214.2(h)(15)(ii)(B)(1) (“The request for extension must be accompanied by either a new or a photocopy of the prior certification from the Department of Labor that the petitioner continues to have on file a labor condition application valid for the period of time requested for the occupation.”). Amended or new petitions require new LCAs. See 8 C.F.R. § 214.2(h)(2)(i)(E).
  • 87. 20 C.F.R. § 655.705(c)(4).
  • 88. When multiple places of employment are contemplated, the USDOL regulations state that “[a]ll intended places of employment shall be identified on the LCA; the employer may file one or more additional LCAs to identify additional places of employment.” 20 C.F.R. § 655.730(c)(5).
  • 89. Paula Chakravartty, Weak Winners of Globalization: Indian H-1B Workers in the American Information Economy, AAPI Nexus, Vol. 3, No. 2, p. 59, 64-67 (Winter 2005) (Describing first-hand exploitation of Indian H-1B employed by body shops).
  • 90. GAO 11-26, at 53-54 (noting 249 H-1B investigations in the Northeast Region during the time period 2006-2009, based on WHD data).
  • 91. GAO 11-26, at 2 (highlights); see Government Accountability Office, H-1B Visa Program:Multifaceted Challenges Warrant Re-examination of Key Provisions, at 12, (Mar. 31, 2011) available at http://www.gao.gov/new.items/d11505T.pdf
  • 92. Donald Neufeld, Assoc. Dir. of Service Center Operations, USCIS, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements, (Jan. 8, 2010) available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%2....
  • 98. See 8 C.F.R. § 214.2(h)(4)(iii)(C) (beneficiary qualifications).
  • 99. 9 FAM 41.53 N8.1.
  • 100. 9 FAM 41.53 N2.1-2.2; see also Government Accountability Office, H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program, No. 11-26, at 47, (Jan. 2011), available at http://www.gao.gov/new.items/d1126.pdf
  • 101. U.S. State Department, NIV Workload by Visa Category FY12, available at http://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (last visited June 2013).
  • 102. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
  • 103. See 20 C.F.R. § 655.731(c)(9)(ii) (deductions from wages “may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition)”).
  • 104. See, e.g., Nunag-Tanedo v. East Baton Rouge Parish School Bd., Complaint, Case No. SA CV10-01172 (C.D. Cal., August 5, 2010) (detailing fees plaintiffs had to pay in violation of H-1B program rules), available at http://www.splcenter.org/sites/default/files/downloads/case/Filipino_tea....
  • 105. Id.
III. H-1B WORKERS IN THE U.S. – DATA
Each of the agencies involved with administering the H-1B program maintain and publish data about H-1B workers in the U.S.  However, each data set is only pertinent to that specific agency’s function.  No single agency can tell us how many H-1B workers are present in the U.S. at any given time, for example.  Viewing the data together and taking each source into context, though, does provide a clearer picture of the H-1B workforce.  Because the program is annually capped, Congress requires both the U.S. Department of Homeland Security and the U.S. Department of Labor to issue quarterly and annual reports detailing the program.  As such, the government publishes more information about the H-1B visa than any of the other other nonimmigrant programs.
 
Most H-1B workers are Indian and Chinese and are employed in the computer and information technology industries (IT).  While media reports have made this abundantly clear none of the available data itself is broken down enough to determine the nationalities of H-1B workers employed in specific industries.  For example, publicly available data does not indicate in what industry or where the 105 Hondurans were employed in 2012.  Indeed, H-1B workers come from all over the world and work in a wide variety of industries and professions.  Nonetheless, across nationality and job type, data suggests that many H-1B workers are paid less than their U.S. counterparts.106
 
 
 
A. Number Of H-1B Workers In The U.S.
 
Sources: Data taken from annual performance reports published by U.S. Department of Labor, Office of Foreign Labor Certification, available at http://www.foreignlaborcert.USDOLeta.gov/performancedata.cfm(last visited June 2013).

Data taken from annual characteristics reports published by U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=9a1d9ddf801b3210VgnVCM100000b92ca60aRCRD&vgnextchannel=9a1d9ddf801b3210VgnVCM100000b92ca60aRCRD(last visited October 2013).

U.S. Department of State, NIV Detail Table FY 97-12, available athttp://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html(June 2013).

Data taken from annual nonimmigrant flow reports published by U.S. Department of Homeland Security, Office of Immigration Statistics, available at http://www.dhs.gov/yearbook-immigration-statistics(last visited October 2013).

 
1. U.S. Department of Labor
The U.S. Department of Labor (USDOL) maintains a quarterly count of H-1B workers sought based on information in the Labor Condition Applications (LCA).  In 2012, the USDOL certified 828,315 positions for H-1B workers on LCAs.107 This number is higher than the annual cap because it includes certifications for both initial H-1B workers and those already in the U.S. who are continuing their employment.  Furthermore, there may be several LCA positions certified for one single worker.  This is because when H-1B workers are employed in different locations or worksites, or when a worker’s job is changed or extended, the employer must submit a new LCA.  Additionally, LCAs are submitted for all H-1B workers, even those exempt from the cap, such as employees of academic institutions and government and nonprofit research centers.  USDOL’s Office of Foreign Labor Certification files an annual report detailing the several nonimmigrant work visas in its charge, including H-1B.
 
2. U.S. Department of State
The U.S. Department of State tracks the numbers of H-1B visas issued to foreign workers each year and publishes its nonimmigrant visa numbers by category on their website.108 In 2012, there were 135,530 new H-1B visas. This number does not count the workers who entered with H-1B visas in previous years and extended their stay into the present year. 
 
3. U.S. Department of Homeland Security
The U.S. Department of Homeland Security (DHS) has two agencies involved in the H-1B program and thus two sets of data pertaining to the number of H-1B workers.  The U.S. Citizenship and Immigration Services (USCIS) receives the petition for nonimmigrant status, Form I-129, submitted by the employer or agent.  At the border or port of entry, the Customs and Border Patrol (CBP) interviews workers who have received H-1B visas, decides whether to grant their admission, and issues the I-94 entry document.
 
a) U.S. Citizenship and Immigration Services
In 2012, USCIS approved nonimmigrant status for a total of 262,569 beneficiaries on Form I-129s.109 This number is broken down to 136,890 new H-1B workers and 125,679 individuals who were continuing their stay as H-1B workers.  Because there is a limit to the number of H-1B visas that may be issued each year, USCIS distinguishes between initial petitions (that are counted against the cap) and petitions to extend employment (which are not counted against the cap).  USCIS is required by statute to submit annual reports to Congress on H-1B petitions filed and characteristics of H-1B workers.110
 
b) U.S. Customs and Border Patrol
Each time a nonimmigrant worker enters the United States, Customs and Border Patrol (CBP) counts the entry as an admission.  The number of admissions of individuals with H-1B visas is published annually.111  CBP reported 473,015 H-1B admissions in 2012.112  The way the data is collected does not distinguish between the first and return entries; all are counted as separate admissions.113 Therefore, the number refers to admissions rather than individuals.  Departures are not tracked.114 CBP numbers indicate which type of immigration accounts for traffic at the border, not how many H-1B workers are in the U.S. each year.  
 
B. H-1B Worker Demographics

1. National Origin
While H-1B workers come to the U.S. from all over the world, most come from Asia.115 For nearly a decade, the vast majority of workers are from India.  In 2012, 64% of all H-1B visa petitions approved by USCIS were for Indian workers.116 This percentage increased from 58% in 2011. The country with the second-most beneficiaries was China, but with just 7.5% of all H-1B visa petitions granted in 2012. When looking at the three data sources tracking the national origin of H-1B workers, it is clear that the top ten sending countries for H-1B workers have remained stable over the past several years.117 There have been some slight changes, however.  For example, since 2010, the number of H-1B workers from Mexico has increased and workers Taiwan has decreased.118 Even so, the numbers of individuals from other countries pale in comparison to India, which sends more H-1B workers than all other nations combined. 
 
 
 
2. Age and Education
In 2012, 86.4% of all H-1B workers were between the ages of 25 and 39 years old.119 The same data set shows that 53% of H-1B workers that year had a Master’s degree or higher.120  A Government Accountability Office study from 2011 evaluated data from 2008 found that in some H-1B “heavy” occupations like computer processing, the H-1B workers were younger and more educated than their U.S. counterparts.121

 

 
 
C. H-1B Job Characteristics
In 2011, 49% of all H-1B positions certified by USDOL were in Science, Technology, Engineering and Math (STEM) jobs.123   
 
 
1. Computer Related Jobs Predominate
Computer-related and information technology occupations (IT) are the most common type of jobs in the H-1B program.124 This has been the case almost since its inception.125 The next biggest industries are engineering and architecture, followed by positions in administration.126 While the IT sector dwarfs the H-1B program, there are also many entry-level jobs that appear to span a wide variety of industries and professions. 
 
 
 
2. Drop in Education Jobs
H-1B jobs in education have never occupied a large percentage of this visa category. In 2011, only 6.7% of H-1B workers were college and university professors and just 1.9% of workers were secondary, primary and pre-k teachers.127 In 2012, however, those percentages dropped even further to 4.9% for professors and less than 1% for secondary and primary school teachers, who did not even make it on the chart in USCIS’s annual report.128
 
3. Compensation Data
Because the H-1B specialty visa program is geared towards professional occupations that require advanced degrees, salaries are considerably higher than in other nonimmigrant visa programs for lower-skilled jobs. USDOL publishes information from approved LCAs including salary levels by state.  Various high skilled and in-demand foreign professionals, such as IT managers and medical personnel, command six-figure salaries.  For example, in 2012, a software developer in San Francisco earned $150,000, and a pharmacist in Ohio made $141,000.129 However, H-1B visas run the gamut of professional occupations, and so do corresponding annual salaries.  A kindergarten teacher in Portland, OR earned $29,000; recreation workers in Colorado earned $30,000; architects in New York City earned $30,000; and rehabilitation counselors in Massachusetts earned $26,250.130   Even though these salaries are tested against a prevailing wage standard, many H-1B workers remain underpaid.  Jobs are easily mischaracterized as entry-level when in reality the nonimmigrant is experienced and should be paid at a higher rate.  Sometimes, the worker is not paid the required wage despite what the LCA may indicate.
 
 
 
D. H-1B Employer Demographics
Given that STEM jobs are the most common in the H-1B program, it is not surprising that the largest H-1B employers are in the information technology arena. When including both new and continuing workers, Wipro, Ltd. came out ahead with 76,365 positions certified by USDOL in 2012.137 That same year, Cognizant Technology was the largest employer of workers approved for initial employment.138
 
 
 
 
 
 
1. Educational Employers
Most H-1B employers in the education field are colleges and universities. There are about half as many employers that are secondary and elementary schools.
 
Source: U.S. Department of Labor, Office of Foreign Labor Certification – 2011 Annual Report, p. 43, available at http://www.foreignlaborcert.USDOLeta.gov/performancedata.cfm(last visited June 2013).
 
2. Job Location
In 2012, the state with the most H-1B positions certified by USDOL was California, with 141,421.143 Five states accounted for 50% of all H-1B positions certified: California, New York, Texas, New Jersey and Illinois.  The city with the most certified positions was New York City, with 37,795.144

 

  • 106. See generally, Matloff, 36 Univ. Of Mich. Journal Of Law Reform at 11.
  • 107. U.S. Department of Labor, OFLC, H-1B Temporary Visa Program – Selected Statistic, FY 2012, available at http://www.foreignlaborcert.doleta.gov/pdf/h_1b_temp_visa_2012.pdf (last visited June 2013).
  • 108. U.S. Department of State, NIV Detail Table FY97-12 available at http://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (last visited June 2013).
  • 109. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers FY 2012 Annual Report (June 26, 2013), available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy....
  • 110. 8 U.S.C. § 1184, Note "Improving Count of H-1B and H-2B Nonimmigrants” American Competitiveness and Workforce Improvement Act of 1998, Pub. L. 105–277, div. C, title IV, §416(c)(2), Oct. 21, 1998, 112 Stat. 2681–655, amended by REAL ID 2005, Pub. L. 109–13, div. B, title IV, §406, May 11, 2005, 119 Stat. 320).
  • 111. U.S. Department of Homeland Security, Nonimmigrant Admissions by Class of Admission and Country of Citizenship: Fiscal Year 2012 (Supplemental Table 1), available at http://www.dhs.gov/yearbook-immigration-statistics-2012-nonimmigrant-adm... (last visited September 2013).
  • 112. Id.
  • 113. Telephone and email correspondence with Office of Immigration Statistics employees, U.S. Department of Homeland Security (2011, 2013).
  • 114. Ted Robbins, U.S. Aims To Track Foreigners Who Arrive, But Never Leave, National Public Radio (May 1, 2013), available at http://www.npr.org/2013/05/01/180338462/u-s-aims-to-track-foreigners-who....
  • 115. U.S. Department of State, NIV Detail Table FY97-12.
  • 116. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers FY 2012 Annual Report, p. 7-8.
  • 117. Note that Canadian citizens generally do not require a nonimmigrant visa in order to enter the United States. See http://travel.state.gov/visa/temp/without/without_1260.html (last visited Sept. 2013). For this reason, U.S. State Department data revealing the nationality of individuals receiving visas does not include Canada. However, employers who want to hire H-1B workers from Canada must follow the same steps filing paperwork with USDOL and USCIS, and workers must present for admission at the border through CBP. Therefore, data from those agencies does include Canada.
  • 118. U.S. Department of State, NIV Detail Table FY97-12.
  • 119. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers FY 2012 Annual Report, p. 9.
  • 120. Id. at 10.
  • 121. GAO-11-26, at 88-89.
  • 123. U.S. Department of Labor, Office of Foreign Labor Certification – 2011 Annual Report, p. 36, available at http://www.foreignlaborcert.USDOLeta.gov/performancedata.cfm (last visited June 2013).
  • 124. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers, FY 2011 Annual Report, p. 11-15 (March 12, 2012).
  • 125. GAO-11-26, at 34 (noting 42% of all H-1B jobs were in systems analysis and programming).
  • 126. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers, FY 2011 Annual Report, p. 11-15 (March 12, 2012).
  • 127. Id. at 15.
  • 128. U.S. Department of Homeland Security, USCIS, Characteristics of H-1B Specialty Occupation Workers FY 2012 Annual Report, p. 15.
  • 129. U.S. Department of Labor, OFLC, Performance Data, LCA_Case_Data_FY2012.csv, available at http://www.foreignlaborcert.doleta.gov/performancedata.cfm (last visited June 2013).
  • 130. Id.
  • 137. U.S. Department of Labor, OFLC, H-1B Temporary Visa Program – Selected Statistic, FY 2012.
  • 138. Farah Stockman, Outsourced, At Home, Boston Globe (March 31, 2013) (noting that the top four employers accounted for roughly one-fifth of all initial nonimmigrant petitions in 2012), available at http://www.bostonglobe.com/opinion/2013/03/30/visa-program-has-been-hija....
  • 143. U.S. Department of Labor, Office of Foreign Labor Certification, H-1B Temporary Visa Program – Selected Statistic, FY 2012, available at http://www.foreignlaborcert.doleta.gov/pdf/h_1b_temp_visa_2012.pdf (last visited June 2013).
  • 144. Id.
IV. H-1B WORKERS’ RIGHTS
The H-1B program regulations establish several worker protections. While there is a required fixed wage that must be paid to H-1B workers, there are no provisions for housing or inbound transportation.  There are wage payment, recordkeeping, and work guarantee rules, including an explicit ban on shifting application fees to workers and offering the same benefits to H-1B workers as to U.S. workers. H-1B workers are also protected by other federal or state employment statutes or common law rights that may apply, including but not limited to the Fair Labor Standards Act, the Age Discrimination Employment Act, Title VII of the Civil Rights Act, the Trafficking Victims Protection Act, the Racketeer Influenced Corrupt Organizations Act, and state wage and hour and discrimination laws.  Whether specific statutes or common law rights apply to any given worker will depend on the facts of each particular situation.
 
 
A. Transportation Costs
H-1B program regulations do not require employers generally to pay for a worker’s inbound or outbound travel expenses.  However, employers must pay for outbound travel when a worker is dismissed prior to the end of the certified work period.145   If the employer fronts the cost of travel to the U.S., that cost may only be deducted from the H-1B worker’s paycheck if he or she voluntarily agrees in writing ahead of time.146
 
B. Required Wage
H-1B workers must receive “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or . . . the prevailing wage level for the occupational classification in the area of employment, whichever is greater.”147 The U.S. Department of Labor (USDOL) reviews the required wage when the labor condition application is approved.  The wage must be paid for the entire time period certified in the application. 
 
1. Deductions
Any unauthorized deduction taken from wages is considered to be non-payment of that amount of wages.148 Unauthorized deductions include money for any of the H-1B program fees, including employer’s business expenses, such as attorney fees related to the H-1B application and processing, tools and equipment, travel expenses for the job, or penalties for not completing the work period.149 Deductions are only permissible when they are required by law, such as income taxes, or reasonable and customary, such as insurance premiums, or voluntarily authorized by the worker.150 Valid deductions must be in writing and not exceed the fair market value or actual cost of the item.151
 
 
 
C. Wage Payment
Wage payment rules depend on whether the H-1B worker is paid on a salaried basis, or by the hour, piece-rate or commission.  For salaried employees, wages are due in prorated installments paid no less often than monthly.154 Educational employers may pay H-1B workers in disbursements over fewer than 12 months as long as the payment schedule is established practice that applies to everyone and the H-1B worker agrees to the compressed annual salary payments beforehand.155 Hourly workers should be paid for all hours worked at the end of the employee’s ordinary pay period.156
 
D. Work Guarantee
H-1B workers are protected with a work guarantee that requires payment for some non-productive time.  Regulations require employers to pay H-1B workers when they are in “non-productive status” due to a decision by the employer or related to employment.157 Examples of this so-called “benching” are a lack of assigned work or the employer’s failure to secure a permit or license.  In any case, the employer is required to pay their H-1B workers as if they were working.  Salaried employees should receive the full amount due and hourly workers should be paid full-time at the required wage as listed on the labor condition application. Part-time workers should be paid at least the number of hours indicated on the nonimmigrant petition (Form I-129) and the LCA.  Payment is not required if the H-1B worker misses work due to reasons that have nothing to do with an employer decision or when the employment relationship has been terminated.158 For example, if a worker is on vacation, or caring for an ill relative or is unable to work because of illness or disability, the employer does not need to pay the worker as if they were working.159
 
E. Recordkeeping
Employers must keep records that document that each H-1B worker has been paid the required wage.160 Payroll records for each worker must include his or her name, home address, occupation, rate of pay, total wages paid, the date of pay and pay period covered, any deductions, and documentation that the same benefits have been offered to H-1B workers as the employer offers to U.S. workers.161 If the worker is part-time or is paid on an hourly, piece-rate, or commission basis, the records must show the hours worked each day and each week.162
 
F. Same Offer of Benefits as U.S. Workers
Employers must offer to H-1B workers the same benefits as are offered to their U.S. workers, “on the same basis, and in accordance with the same criteria.”163  Whether the benefits are cash bonuses, stock options, paid vacations and holidays, health, life, disability and other insurance plans, or retirement and savings plans, employers may not “provide more strict eligibility or participation requirements” for H-1B workers than for similarly employed U.S. workers.164  Indeed, “H-1B nonimmigrants are not to be denied benefits on the basis that they are “temporary employees” by virtue of their nonimmigrant status.”165   An employer may offer greater or additional benefits to H-1B workers than are offered to similarly employed U.S. workers as long as “such differing treatment is consistent with the requirements of all applicable nondiscrimination laws.”166   The rules are slightly different for multinational employers.167
 
1. Extra documentation needed
Employers are required to document that the benefits were offered to H-1B workers, and keep records of all eligibility and participation rule and how costs are shared.168 Records should include a description of the benefit plans and “any rules the employer may have for differentiating benefits among groups of workers” as well as evidence as to what benefits are actually provided to U.S. workers and H-1B workers.169
  • 145. 8 U.S.C. § 1184(c)(5)(A); 8 C.F.R. § 214.2(h)(4)(iii)(E).
  • 146. 20 C.F.R. § 655.731(c)(9)(iii); see also U.S. Department of Labor, WHD Fact Sheet #62H.
  • 147. 8 U.S.C. § 1182(n)(1)(A)(i).
  • 148. 20 C.F.R. § 655.731(c)(11).
  • 149. 20 C.F.R. § 655.731(c)(9)(ii) and (iii).
  • 150. Id.
  • 151. 20 C.F.R. § 655.731(c)(9)(iii).
  • 154. 20 C.F.R. § 655.731(c)(4).
  • 155. Id.
  • 156. 20 C.F.R. § 655.731(c)(5) (usually weekly, but in no event less frequently than monthly).
  • 157. 20 C.F.R. § 655.731(c)(7)(i)
  • 158. 20 C.F.R. § 655.731(c)(7)(ii)
  • 159. Id. The rules specify that employers must comply with their own benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) that may apply.
  • 160. 20 C.F.R. § 655.731(b).
  • 161. Id.
  • 162. 20 C.F.R. § 655.731(b)(v). Daily and weekly hours do not need to be included for salaried employees.
  • 163. 20 C.F.R. § 655.731(c)(3). Benefits received by H-1B workers “need not be identical to the benefits received by similarly employed U.S. workers(s), provided that the H-1B nonimmigrant is offered the same benefits package as those workers but voluntarily chooses to receive different benefits.”
  • 164. 20 C.F.R. § 655.731(c)(3)(i) (“e.g., full-time workers compared to full-time workers; professional staff compared to professional staff”).
  • 165. Id.
  • 166. Id.
  • 167. Id. Multinational employers may choose to provide H-1B workers with “home country” benefits. See 20 C.F.R. § 655.731(c)(3)(iii)(C).
  • 168. 20 C.F.R. § 655.731(b).
  • 169. Id.
V. ENFORCEMENT
Three agencies may enforce H-1B program rules:  the U.S. Department of Labor (USDOL), the U.S. Department of Homeland Security, or the U.S. Department of Justice.170 While the State Department does not have enforcement authority, consular officials abroad are instructed to report any suspected violations to USDOL.171 If an H-1B worker claims any sort of discrimination, the Equal Employment Opportunity Commission may have the ability to enforce those rights.  State attorneys general and agencies customarily will have the authority to enforce state laws that may apply. Workers themselves may enforce their own employment and civil rights through private litigation by filing a lawsuit in federal or state court as long as there is jurisdiction and a private right of action; workers do not have the power to enforce H-1B program regulations.  However, as is the case with all foreign temporary workers, it is may be a challenge to find a lawyer willing to continue with the case after the migrants return home once their visas expire.
 
Examples of enforcement actions and cases highlight common problems with the H-1B program. Among them, employers who illegally charge H-1B workers for visa fees or recruitment costs, do not provide jobs even after they are hired, place workers in different jobs than what is described in the Labor Condition Application, and fail to pay the prevailing wage.172 Despite the success of some enforcement actions, there are problems with the scheme generally. Several Government Accountability Office studies have criticized the various federal agencies for “fragmented and restricted” oversight.173  Furthermore, remedies do not always inure benefits to the workers. Civil money penalties are paid to the government, for example. And while debarring an exploitative employer may be necessary to stop future abuse, the victimized workers lose their immigration status and must return home unless they have been lucky enough to line up a new employer to petition for them.  Even though some private lawsuits have won money for workers, there are limits to their efficacy.   
 
 
A. U.S. Department of Labor
USDOL’s Wage and Hour Division is responsible for enforcing H-1B regulations and the Labor Condition Application (LCA).174 “Any aggrieved person or organization” may complain to USDOL within 12 months after the date of the apparent violation.175  However, complaints are rare.  In 2009, for example, “only 664 out of 51,980 companies approved to hire new or extending H-1B workers had complaints against them.”176 A USDOL investigation may also initiate its own investigation at random when the employer s a willful violator, or when there is reasonable cause for an investigation.177
 
If USDOL finds that an employer has violated the LCA, it may seek back wages owed to the workers, impose civil money penalties, which are paid to the U.S. Treasury, debar the employer from hiring nonimmigrants in the future, and pursue other appropriate relief.178 False statements in an LCA may result in up to five years in prison and a $10,000 fine.  In April 2013 there were 31 employers on the H-1B barred/disqualified list.179 USDOL’s Inspector General has challenged the agency to more effectively use of its debarment authority within the foreign labor certification programs.180
 
1. Retaliation prohibited
The H-1B program prohibits retaliation.  Immigration law states that H-1B employers may not:
 
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer’s compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.181
 
Workers who complain about employer retaliation and are otherwise eligible to remain and work in the U.S. are able to “to seek other appropriate employment” until their current H-1B visa expires.182 If USDOL finds that an employer has violated this anti-retaliation provision, it may impose fines of up to $5000 per violation and a 2-year ban preventing the employer from importing H-1B workers.  However, aggrieved workers may not file their own case and seek money damages on their own behalf, based only on an employer’s violation of the H-1B regulations.183
 
 
2. Threat of debarment dissuades worker complaints
When USDOL debars an employer from participation in the H-1B program, the workers lose their jobs and their immigration status.  Just the threat of this remedy creates a disincentive for workers to complain about their H-1B jobs.  Enforcement efforts are undermined when workers do not want to come forward if there is any chance that they will lose their job.  This is especially true when the workers have paid recruitment fees and other costs to be able to get the H-1B job and come to the U.S. in the first place.  Receiving an award of back wages offers little comfort to workers who may no longer work in the United States.
 
 
B. U.S. Department of Homeland Security
The U.S. Department of Homeland Security (DHS) has a special Office of Fraud Detection and National Security (FDNS) that is funded by anti-fraud fees.192 The FDNS is DHS’s “primary conduit for information-sharing with law enforcement and intelligence agencies.”193 It was created after an internal DHS fraud study recommended that the agency focus on prosecuting employers who exploit their workers and engage in visa fraud.194 When appropriate, FDNS refers matters to DHS’s U.S. Immigration and Customs Enforcement for investigation.
 
1. Administrative Site Visit and Verification Program
FDNS developed the Administrative Site Visit and Verification Program (ASVVP), where field officers conduct site inspections to verify information, and identify fraud cases.195  Employers must acknowledge on their H-1B petition that there may be a DHS audit or inspection of their workplace.196  During inspections, FDNS relies on interviews and document checks to ensure that the employer is legitimate and that H-1B workers are laboring under the terms stated on the Form I-129 petition.197 In 2009, FDNS conducted 5,191 visits.198 In 2010, the FDNS “oversaw 14,433 H-1B site inspections, which resulted in 1,176 adverse actions.”199 According to USCIS, the fraud rate has been falling.  A 2008 study found 20% fraud rate among H-1B visa petitions; by 2011, it was down to 7%.200
 
 
C. Private Litigation
H-1B workers do not have the legal authority to enforce H-1B program regulations in court.  However, to the extent that there is an enforceable employment contract, applicable federal or state statute, or common law claim, H-1B workers may file a lawsuit to enforce their rights and have their day in court in just like any other U.S. worker.  
 
1. Access to Counsel
H-1B workers may have a problem finding a lawyer’s assistance due to language or cultural differences.  Generally, cases for temporary foreign workers present logistical challenges when clients have to return home while matters are pending.  However, because most H-1B workers have college degrees and work in urban areas, their access issues are not as serious as those faced by their lower-wage, unskilled counterparts in other visa programs such as H-2A, H-2B, and J-1.
 
a) Legal Services lawyers
Federally funded lawyers may represent individuals with an income below a certain financial level (usually 125% of the federal poverty guideline) and only certain classes of immigrants.208 In most cases H-1B workers will not be eligible for representation by an LSC grantee because of these financial and immigration restrictions.  However, there may be an exception if the worker is a victim of domestic violence, human trafficking or another crime.209
VI. H-1B WORKERS IN THE U.S. - ISSUES
Issues involved with the H-1B program concern both the treatment of foreign workers and the effect of their employment on U.S. workers. With regard to foreign workers, underpayment of wages and illegally requiring recruitment fees are the biggest issues.  Furthermore, when a worker’s immigration status is tied to one single employer, the relationship is ripe for abuse.  Concerning the effect on U.S. workers, studies continue to show that claims of a labor shortage are not well founded.  Indeed, there is high unemployment among college graduates in the information technology industry, a sector of the economy that employs the greatest percentage of H-1B nonimmigrants.
 
 
A. Wage Underpayment
Evidence of H-1B worker wage underpayment has been a longstanding concern.210 Even back in 1996 an Inspector General report found that 75% of H-1Bs were “working for employers who did not adequately document the proper wage” on the Labor Condition Application (LCA) and “when the actual wage could be determined, 19 percent of the H-1B workers were paid less than the wage specified on the LCA.”211 In the computer-related industry, which has been extensively studied, many H-1B workers still earn less than similarly situated U.S. workers.212 Some employers even admit to hiring H-1B workers “in part because these workers would often accept lower salaries than similarly qualified U.S. workers; however, these employers said they never paid H-1B workers less than the required wage.”213
 
Furthermore, wage underpayment results in lower wages across the board. One study based on data accumulated from 156,000 information technology workers at 7,500 U.S. companies found that the H-1B workforce results in a 5-6% wage decrease for computer programmers, system analysts and software engineers overall.214
 
B. Job Tied to Immigration Status
Similar to other temporary work visas, an H-1B worker’s immigration status is tied to the particular employer that petitioned the government for permission to hire him or her.  This creates a vulnerable situation for the worker.  Because the employer “controls the visa process, employees can feel forced to remain silent about unequal pay or else risk their immigration status.”215
 
An H-1B worker may change jobs if a new employer has had both a Labor Condition Application (LCA) approved by the U.S. Department of Labor and a nonimmigrant petition Form I-129 approved by the U.S. Citizenship and Immigration Services (part of the U.S. Department of Homeland Security).216 The LCA and Form I-129 must be filed before the current authorized stay expires.217
 
However, if an H-1B worker is in the process of adjusting their status to become a Lawful Permanent Resident (LPR) with an employment-based visa through their current employer, the worker may not change jobs.  Indeed, when an employer begins the process of changing the H-1B worker’s status to an LPR, the worker must continue employment until the new status is approved.  The process usually takes several years depending on the visa wait times.218  Changing employers during the process results in starting over and losing the time already spent waiting for approval.  Of course, this situation is not unique to H-1B workers. Most all employment-based immigration applications depend on a particular employer demonstrating to the U.S. government that a particular worker is needed. Once workers receive LPR status, however, they are free to find work wherever they want. 
 
 
 
C. Existence of Labor Shortage Questioned
Critics of the H-1B program claim there are plenty of qualified U.S. workers who are willing to work.224  Within the information technology sector specifically, data show a robust supply of U.S. labor.225 Some report that U.S. workers in computer jobs have simply been replaced with Indian contractors.226  These anecdotes support the claim that it is simply “a matter of money, after all, not a shortage of workers.  Employers want cheap labor, and. . . that desire is fulfilled by the H-1B program.”227 The fact that employers generally are not required to recruit U.S. workers before seeking approval for H-1B workers is telling. By not setting up a labor market test prior to importing foreign workers, Congress has sent the message that whether there is a labor shortage is actually not very important.  
 
D. Discrimination Against U.S. Workers
In 2003, the Government Accountability Office studied the matter and argued that better tracking was needed to determine the effect of H-1B workers on U.S. workers. The longstanding concern has been that employers hire nonimmigrant workers simply because they are less expensive long term.228 This may be because of wage underpayment, or because employers prefer younger workers because they are cheaper long term.229 As a result, not only are there reports of employers replacing U.S. workers with H-1B workers,230  but there is also discrimination in hiring.  For example, in 2013, the U.S. Department of Justice found that Avant Healthcare Professionals posted online job openings with language “impermissibly preferring foreign-trained individuals” under the H-1B visa program over U.S. workers.231
  • 210. Sam Harnett, H-1B Skilled Worker Visa Under Fire, PRI’s The World (March 6, 2013) (describing a worker’s claim that “not long after signing on to California software firm, he noticed that he was paid 10 to 20 percent less than his American co-workers doing the same job”), available at http://www.theworld.org/2013/03/skilled-worker-visa/.
  • 211. Government Accountability Office, H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect Workers, No. 00-157, at 17, (Sept. 2000) (citing “increasing instances of program abuse in which workers are brought into the United States to work, but are not employed and receive no pay until jobs are available,” and employers withholding wages from employees who have voluntarily left employment).
  • 212. GAO-11-26, at 58
  • 213. Government Accountability Office, H-1B Foreign Workers: Better Tracking Needed to Help Determine H-1B Program’s Effects on U.S. Workforce, No. 03-883, at 4, (September 2003); see also Patrick Thibodeau, The coming collapse of IT jobs and wages, Computerworld (March 27, 2009) (“In 2006, IBM produced a chart illustrating the stark differences in wages between India and the U.S. and presented it to analysts in Bangalore”) available at http://blogs.computerworld.com/the_coming_collapse_of_it_jobs_and_wages; Ron Hira, H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers, Testimony before The Subcommittee on Immigration Policy and Enforcement Committee on the Judiciary U.S. House of Representatives (March 31, 2011) (discussing evidence that USDOL had certified low hourly wages in the computer industry), available at http://judiciary.house.gov/hearings/pdf/Hira03312011.pdf.
  • 214. Patrick Thibodeau, H-1B Visa Use Cuts U.S. Programmer, Software Engineer Wages by up to 6%, Computerworld, (April 17, 2009), available at http://www.computerworld.com/s/article/9131729/H_1B_visa_use_cuts_U.S._p... see also J. Miano, Center for Immigration Studies, Low Salaries for Low Skills: Wages and Skill Levels for H-1B Computer Workers, (April 2007) (discussing relatively low wages for H-1B workers in computer sector, based on analysis of FY 2005 LCA data), available at http://cis.org/LowSalariesforLowSkills-H1B.
  • 215. Sam Harnett, H-1B Skilled Worker Visa Under Fire, PRI’s The World (March 6, 2013), available at http://www.theworld.org/2013/03/skilled-worker-visa/.
  • 216. 8 C.F.R. § 214.2(h)(2)(i)(D),(E).
  • 217. U.S. Department of Labor, WHD, Fact Sheet #62W.
  • 218. Sam Harnett, H-1B Skilled Worker Visa Under Fire, PRI’s The World (March 6, 2013), (describing difficulty of obtaining green card status through H-1B employer when worker has complaints about the job), available at http://www.theworld.org/2013/03/skilled-worker-visa/.
  • 224. Don Bauder, Are American Engineers in Short Supply?, San Diego Reader (March 9, 2011), available at http://www.sandiegoreader.com/news/2011/mar/09/citylights1-american-engi....
  • 225. Daniel Costa, STEM labor shortages? Microsoft report distorts reality about computing occupations, Economic Policy Institute, Policy Memo #195 (November 19, 2012), (evidence that there is no shortage of workers in computer-related occupations is apparent in wage trend data), available at http://www.epi.org/files/2012/pm195-stem-labor-shortages-microsoft-repor....
  • 226. Farah Stockman, Outsourced, At Home, Boston Globe (March 31, 2013), available at http://www.bostonglobe.com/opinion/2013/03/30/visa-program-has-been-hija....
  • 227. Norman Matloff, On The Need for Reform of the H-2B Non-Immigrant Work Visa in Computer-Related Occupations, 36 Univ. of Mich. Journal of Law Reform 1, at 49-50 (2003).
  • 228. Id., generally.
  • 229. Norman Matloff, The Adverse Impact of Work Visa Programs on Older U.S. Engineers and Programmers, Cal. Labor & Employment Law Rev. Vol. 20, No. 4, at 5 (August 2006).
  • 230. Josh Harkinson, How H-1B Visas Are Screwing Tech Workers, Mother Jones (Feb. 22, 2013) (“A few years ago, the pharmaceutical giant Pfizer informed hundreds of tech workers at its Connecticut R&D facilities that they'd soon be laid off. Before getting their final paychecks, however, they'd need to train their replacements: guest workers from India who'd come to the United States on H-1B visas.”), available at http://www.motherjones.com/politics/2013/02/silicon-valley-h1b-visas-hur... Don Tennant, Claim of 'Policies' to Displace U.S. Workers Is Destined to Backfire, IT Business Edge (Nov. 2, 2011) (“It is a fact that there are documented cases in which American technology workers have been forced to train their H-1B replacements.”), available at http://www.itbusinessedge.com/cm/blogs/tennant/claim-of-policies-to-disp....
  • 231. U.S. Department of Justice, Press Release, Justice Department Reaches Settlement with Avant Healthcare Professionals LLC to Resolve Immigration-Related Unfair Employment Practices (Feb. 8, 2013) available at http://www.justice.gov/opa/pr/2013/February/13-crt-173.html.

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