The H-1B visa was originally enacted to fill missing technical skills, not swap US jobs for cheaper labor.
On March 19, 2017, Sixty Minutes ran a critical exposé of the H-1B program.
This program is used by many employers to facilitate the admission, on a temporary basis, of “skilled” foreign nationals (“FNs”) to work in, so called, “specialty occupations”.
The Sixty Minutes piece raised the specter that some employers are using H-1B employees to replace more qualified U.S. workers in order to cut labor costs.
View the "60 Minutes" segment which examines H-1B visas outsourcing American jobs
I do not doubt that some employers try to take advantage of FNs in this way, but, at the same time, the vast-majority of employers try to abide by the regulations, which provide certain restrictions on who qualifies for H-1B status and how employers should employ such foreign workers. Unfortunately there are abuses.
The Specialty Occupation Requirement
The purpose behind the H-1B program is to promote the temporary admission of skilled persons who have specialized knowledge in a “specialty occupation,” defined as an occupation that requires its beneficiaries to hold at least a U.S. equivalent baccalaureate degree in an area of specialized knowledge.
The most clear-cut of specialty occupations are STEM (Science, Technology, Engineering and Math), Accounting, and Law. Many other occupational areas are in transition to becoming specialty occupations, i.e. Fashion Designer and Software Developer.
An important restriction is that a general baccalaureate degree, in and of itself, will not qualify a candidate for H-1B status.
A BA in English, for example, would not be H-1B qualified for a position as an Economist. Indeed, in recent years,
Immigration has become increasingly severe at examining how “specialized” is “specialized” and whether an H-1B beneficiary has the academic background and/or experience necessary to meet the minimum requirements for such a position.
The Prevailing Wage Requirement
In addition to H-1B’s being restricted to “specialty occupations”, they must also be paid a “prevailing wage”, which is the wage prescribed by the Department of Labor for that specialty occupation or the wage the employer normally pays an employee in such position, whichever wage is higher.
The idea behind this regulation is to prevent employers from replacing U.S. employees, or not hiring U.S. employees, in favor of lower wage labor. At the same time, the fact is that the only way of enforcing compliance to this rule is either by way of a random audit or on the basis of a “tip off” complaint that an employer is violating such mandates.
H-1B Dependent Employers- Foreign Nationals shall not be hired over US workers equally or better qualified.
Another regulation provides that employers that employ a high percentage of H-1Bs, so called, “dependent” H-1B employers.
They are subject to additional attestation requirements, i.e. U.S. workers shall not be displaced in either the employer’s workforce or in another employer’s workforce and Foreign Nationals shall not be hired over U.S. workers who are equally or better qualified for the position in question.
“Exempt” employees, defined as employees earning at least $60,000 per year and/or holding at least a Master’s degree, or equivalent, are not subject to the additional attestation requirements.
Legislation (the High-Skilled Integrity and Fairness Act of 2017) has been introduced in Congress to raise the minimum annual wage defining “exempt” employees from $60,000 to $130,000, which would result in more positions becoming subject to the additional attestation requirements, but it is too early to tell if this bill will gain any traction.
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About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website