H-1B VISA PROGRAM

Reforms Are Needed to Minimize the Risks and Costs of Current Program

November 2011

Appendix V: Selected H-1B Program Laws (With annotated titles/emphasis mine.)

Establishes temporary non-immigrant work authorization, foreign residence may not be abandonded.

Immigration and Nationality Act,
ch. 447, § § 101(a)(15)(H) and 214(c), 66 Stat. 163, 168 and 189-90 (1952).
Google Scholar (Federal law)

Authorized H-1B visas for aliens with a residence in a foreign country that the alien had no intention of abandoning, who were of distinguished merit and ability, and were coming to the United States to perform temporary service of an exceptional nature requiring such merit and ability.

Involves Department of Justice in H-1B labor codes w 120 day limit.

Immigration Reform and Control Act of 1986,
Pub. L. No. 99-603, § 102, 100 Stat. 3359, 3474-80.
Google Scholar (Federal law)

Makes it an unfair immigration-related employment practice for most employers to discriminate against any individual (other than an unauthorized alien) with respect to hiring, recruitment, firing, or referral for fee because of such individual’s origin or citizenship status. States that it is not an unfair immigration-related employment practice to hire a U.S. citizen or national over an equally qualified alien.
Requires that complaints of violations be filed with the Special Counsel for Immigration-Related Unfair Employment Practices (established by the act) within the Department of Justice.
Authorizes the Special Counsel to (1) investigate complaints and determine (within 120 days) whether to bring such complaints before a specially trained administrative law judge and (2) initiate investigations and complaints. Permits private actions if the Special Counsel does not file a complaint within such 120-day period

Establishes dual-intent, abandons declaration of intent and foreign residence requirement.

Immigration Act of 1990,
Pub. L. No. 101-649, § 205, 104 Stat. 4978, 5019-22.
Google Scholar (Federal law)

Removed requirement that alien have a residence in a foreign country and no intention of abandoning it, and revised statute to authorize H-1B visas for aliens coming temporarily to the U.S. to perform services in a "specialty occupation," which was defined as one that requires, at a minimum, theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent).
Established the LCA process, to be administered by Labor, that requires employers to make certain attestations.[a]
Limited the number of H-1B visas that could be issued during a fiscal year to 65,000 beginning in fiscal year 1992.
Limited the period of authorized admission as an H-1B nonimmigrant to 6 years.
Established "dual intent" provision, under which H-1B visa holders could also pursue permanent residency.
Assigned responsibility to Labor to enforce program rules by investigating complaints made by H-1B workers or their representatives against employers, and by making referrals to Justice and imposing civil monetary penalties where it finds a failure by the employer to meet certain required conditions or the misrepresentation of material fact.

Handcuffs Department of Labor LCA review time and enforcement efforts.

Immigration Technical Corrections Act of 1991,

Pub. L. No. 102-232, tit. III, § 303(a)(7)(B)(iii), 102 Stat.1742, 1747.
Google Scholar (Federal law)

Restricted Labor to reviewing LCAs only for completeness and obvious inaccuracies.
Required Labor, if an LCA is complete and has no obvious inaccuracies, to certify it within 7 days.

Increased H-1b caps, dependent employer (and $60k) loophole.

American Competitiveness and Workforce Improvement Act of 1998,
Pub. L. No. 105-277, div. C, tit. IV, §§ 411-418, 112 Stat. 2681-641, 2681-642 – 2681-657.
Google Scholar (Federal law)

Temporarily raised the cap on H-1B visas for fiscal years 1999 to 2001 to a high of 115,000; returned the cap to 65,000 for the following years.
Defined “H-1B-dependent employer” as employer that has

25 or fewer full-time equivalent employees in the U.S. and employs more than seven H-1B nonimmigrants;
26 to 50 full-time equivalent employees in the U.S. and employs more than 12 H-1B nonimmigrants; or

At least 51 full-time equivalent employees in the U.S., of whom at least 15 percent are H-1B nonimmigrants.
Required H-1B-dependent employers and those that committed a willful failure or misrepresentation during the 5 years preceding filing of an LCA [b] to include additional attestations.

Provided that H-1B-dependent employers and such willful violators are not required to make these additional attestations with respect to H-1B nonimmigrants receiving annual wages of at least $60,000 or those with a master’s or higher degree (or its equivalent) in a specialty related to the job.

Required that H-1B workers waiting for final adjudication of their requests for permanent residence status be given 1-year extensions of their H-1B visas until their requests have been adjudicated.
Provided Labor increased authority to investigate and enforce program compliance and assess civil monetary penalties against employers found to be in violation of certain program requirements.
Required that steps be taken to maintain accurate count of the number of aliens issued H-1B or other nonimmigrant visas.[c]

Non profit and research cap exemption, raised cap to 195,000 for 2001 to 2003

American Competitiveness in the Twenty-first Century Act of 2000,
Pub. L. No. 106-313, §§ 102-106, 114 Stat. 1251, 1251-55.
Google Scholar (Federal law)

Temporarily raised the cap on H-1B visas for fiscal years 2001 to 2003 to 195,000; cap returned to 65,000 for the following years.
Exempts an alien from the H-1B cap if he or she is employed (or has received an offer of employment) at

an institution of higher education or its related or affiliated nonprofit entity;
a nonprofit research organization; or
a governmental research organization.

Created increased portability of H-1B visas by authorizing H-1B workers to accept new employment upon the filing by the prospective employer of a new petition on his or her behalf. The H-1B worker's employment authorization may be extended until the petition is adjudicated.

Chile Free Trade Agreement set aside.

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.
Google Scholar (Federal law)

Created a new nonimmigrant classification available each fiscal year to up to 1,400 professionals from Chile and 5,400 professionals from Singapore, known as H-1B1. These H-1B1 visas count against the H-1B cap.

U.S. Masters Degree -- 20,000 visa increase.

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.
Google Scholar (Federal law)

Provided Labor increased authority to initiate investigations in cases where the Secretary personally certifies there is reasonable cause and approves the investigation. Information providing the basis for the investigation must originate outside Labor unless it was lawfully obtained in the course of another Labor investigation. In addition, receipt of information submitted to Justice or Labor to secure employment of an H-1B worker cannot provide the basis for such investigation.
Exempted the first 20,000 petitions received for individuals who have earned a master's degree or higher from a U.S. institution of higher education.
Raised the fee imposed on most employers when filing an H-1B visa petition to $750 or $1,500 and imposed an additional fraud prevention and detection fee of $500.

Footnotes

[a] Required attestations were as follows: (1) employer will pay H-1B workers the employer's actual wage for the position or the prevailing wage in the area, whichever is higher; (2) employer will provide working conditions for H-1B employees that will not adversely affect the working conditions of workers similarly employed; (3) no strike or lockout exists in the course of a labor dispute in the occupational classification at the place of employment; and (4) the employer has provided notice that it is filing an LCA application to the bargaining representative (if any) of its employees in the occupational classification and area for which aliens are sought, or if there is no bargaining representative, by posting notice of the filing in conspicuous locations at the place of employment.
[b] Additional attestations include the following: (1) employer did not and will not displace a U.S. worker it employs within 90 days before and 90 days after filing any visa petition supported by the LCA; (2) employer will not place the nonimmigrant with any other employer where he or she performs duties at a worksite owned, operated, or controlled by that other employer and there are indicia of an employment relationship between the nonimmigrant and other employer unless it has inquired whether the other employer has displaced or intends to displace one of its U.S. workers within 90 days before or 90 days after the placement; and (3) employer has taken good faith steps, prior to filing the LCA, to recruit in the United States using procedures that meet industrywide standards and offering compensation at least as great as that required to be offered to H-1B nonimmigrants, U.S. workers for the job and has offered it to any U.S. worker who applies and is equally or better qualified for it.
[c] This responsibility was originally assigned to the Attorney General but was later transferred to Homeland Security. Pub. L. No. 109-13, div. B, tit. IV, § 406, 119 Stat. 320.

Source: http://www.gao.gov/assets/320/314501.pdf

Resources:

(GPO.gov) 8 CFR A - IMMIGRATION REFORM AND CONTROL ACT OF 1986 (IRCA) LEGALIZATION PROVISIONS

Economic Immigration Dilemma

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