The Job Shop
It used to be that many HR recruiters recruited H-1Bs, particularly in the information technology field, whom they would later farm out to other employers.
I still hear rumors of this activity going on, but since 2010, Immigration has followed an internal rule more clearly precluding this kind of activity. Specifically, H-1B petitioners are required to exercise “control’ over the activities of H-1B beneficiaries.
There must be an actual employer-employee relationship. Again, while job shops likely continue to exist, H-1B regulations and rules prohibit such activity.
Route to Reform
What might be done to address the shortcomings of the H-1B program?
Here are three recommendations:
1. First, more resources need to go into both educating employers about what their obligations are and enforcing these obligations more vigorously.
2. Secondly, the definition of “specialty” occupation should be reconsidered: Certain occupations may be more specialized than others and warrant the application of different standards.
3. Thirdly, measures like redefining the definitions of “dependent” employer and “exempt” employee should be considered.
Finally, we should think about eliminating the blunderbuss H-1B CAP for skilled employees and consider instead having an independent commission of economic experts appointed which, on a regular basis, would define what skilled occupations are in demand so that, at long last, the H-1B program can meet the real needs of employers who cannot find qualified employees possessing the skills or knowledge base they seek.
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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