THE H-1B WORLD
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WHAT IS AN H-1B VISA?
H-1B is a non-immigrant visa category under the U.S. Immigration & Nationality Act. The H-1B classification is for “specialty occupations” only. The program assists U.S. employers in temporarily filling certain occupations with highly-skilled foreign workers for a period of up to six years.
The occupation requires a bachelor's degree or equivalent for the application of theoretical and highly specialized knowledge. Likewise, the foreign worker must possess at least a bachelor's degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
Employers must pay H-1B workers either the same rate as other U.S. employees with similar skills and qualifications or the "prevailing wage" for that occupation and location, whichever is higher. This is to prevent the hiring of foreign workers from depressing U.S. wages and to protect foreign workers from exploitation.
The term “highly specialized knowledge” includes architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, journalism and the arts.
The duration of stay is three years and could be extended to six years. In certain circumstances, an exception to the maximum length of stay applies. A one-year extension may be granted if a labor certification application has been filed and is pending for at least 365 day and a three-year extension if an I-140 has been approved.
The education requirements for the H-1B visa are the equivalency of a US bachelor's degree, or four years of post-secondary study. If you do not have a four-year degree or if you have an incomplete degree, you can combine with a post secondary diploma from a government recognized institution or you can use work experience.
USCIS uses the three to one rule. Every three years of progressive work experience in the field is equivalent to one year of post secondary study. For example, three years of university study plus three years of progressive work experience in the field is equivalent to four years of study or a US bachelor's degree.
Currently, the number of foreign workers authorized to enter the United States annually through the H-1B program is 65,000, but in previous years the cap has been as high as 195,000. The ceiling set by Congress was raised by 297,500 over three years for fiscal year 2000 to 2002. In addition, excluded from the ceiling are all H-1B non-immigrants who work for universities and nonprofit research facilities. NAFTA allows an exception to the numerical limit of for other nationals: 1,400 for Chileans and 5,400 for Singaporeans. Laws also exempt up to 20,000 foreign nationals holding a master's or higher degree from U.S. universities from the cap on H-1B visas.
H-1B workers are legally required to pay the same taxes as any other U.S. resident. But since an H-1B visa is only valid for 6 years and Social Security eligibility usually requires 10 years of work, most H-1B visa holders will not be able to make use of the Social Security benefits that they are contributing to.
All the reports and articles on this site are provided in a journalistic format and should not be misconstrued as legal advice. You should consult an experienced immigration attorney for more specific questions about the H-1B visa.
The black side of the H-1B rainbow
By H. Rison
There's six years worth of America stuffed into these packing crates: a Pooh bear, Gap shirts, an E-Z carpet shampoo system. Plus one piece of paper, explaining why Sanjay Sathya's suburban Chicago life is now boxed up in his two-car garage, waiting for moving trucks.
"Here it is," he says, eyeing the paper with fresh bitterness. "H-1B Visa. Useless now." Position: senior program analyst. Embossed on the background: the Statue of Liberty, arm holding the torch, her head missing.
"What is it they say? Liberty? Equality? Pursuit of happiness? … Yeah, right," he says. "I guess happiness is relative."
The fall of the Sathyas might be just the typical hard-luck story of any failed immigrant family: They came in on temporary work visas, they wanted to stay, but America turned them out. This year alone, about 40,000 people like Sathya who arrived on this special visa and assumed they could settle in America forever will find themselves heading back home, or to Canada, or someplace else they'd rather not be.
And yet, their story was supposed to end differently. The H-1B visa was designed so trained professionals could work for a limited time in the United States . It became wildly popular in the mid-1990s when Microsoft, IBM and hundreds of hungry high-tech start-ups across the country began using it to recruit an army of high-tech workers for programming jobs.
"The market was hot, hot," Sathya, 32, recalls. "They wanted us yesterday."
To lure these workers, Congress struck a special bargain: The time limit was left in place, but made to seem irrelevant. Applicants no longer had to prove they intended to return home, and the visa was dubbed "transitional," implying: next stop, green card.
But so many immigrants streamed in so quickly that the gears jammed, at every stage. Employers couldn't get certifications from the Department of Labor fast enough. The INS couldn't keep up with applications for permanent residency. And even if the Sathyas, who are from India, had made it that far, they might have been thwarted by the 7 percent annual cap on green cards for immigrants from any one country. About half the H-1B immigrants are from India. <
Now, for the first massive wave of newcomers, the six-year clock has run out. The high-tech companies still desperately need them, and they want to stay, but right there on Sathya's paper is the time limit, bottom right corner.
"Who, who will help me?" Sathya pleads in a rare burst of self-pity. "My latte-drinking lawyer? He already moved on to the next Indian name. My company? They dropped me like a hot potato. The government? Who am I to them?
"It's shameful that this country can't deliver what it promised."
Sitting in a living room that's now technically somebody else's, drinking juice from a plastic cup, Sathya is mostly, though, hard on himself. He feels betrayed, yes, but also embarrassed, like the fool in "A Passage to India " who believes he's befriended the British but somehow has misunderstood all their cues.
"I take pride in what I do," he says. "I like to succeed. Isn't that what America taught me? So now I'm embarrassed that what I set out to do, I failed. That in some way – I'm not really sure how – I failed."
Immigration officials concede no one quite realized how quickly the number of H-1B workers would soar toward half a million, or thought through all the consequences.
"It makes little sense," said Lindsay Lowell of the Institute for the Study of International Migration, who's conducting a study for high-tech companies. "Here these companies are scrambling to meet demand every year while thousands of people are forced to leave."
These days, Web sites for newly formed Chinese and Indian activist groups brim with diffuse anger, bewilderment, kitchen sink dramas like the Sathyas.
People take on names that sound like prison graffiti: "I'm a two-monther or three-monther" (the amount of time they have remaining).
There's Raju Devinder, living out his final two months trapped in a New Jersey apartment "fit for chickens," his house sold, his wife and daughter already back in India. He is considering whether to leave them there and try his luck in Germany, but he is still too nervous to tell them.
"You don't buy a house and you wander, or you buy a house and regret it," says Amar Annathur, a two-monther and a spokesman for the newly minted Immigrant Support Network, a lobby in training. "You want to talk to the media, but you're afraid that will ruin your chances. You just never know what will happen."
But for the Sathyas, it's too late to lobby. They've already decided to go to Canada , wait it out, decide what to do next. And with only a week left until they turn over their house keys, the details crowd out everything else. Should they sell their second car? How do they forward the mail?
Mostly Sanjay worries about Shraya, his 4-year-old daughter: How will they find a good pediatrician? Will she cry over her friends? Over their neighbor's dog, Aspen? Over her Halloween costumes?
"All that weighs heavy," he says. "I just want to give her a nice, clean house. Now I'll be taking her to a 30- or 40-story condo, where she'll have to take the elevator to get to the park."
She echoes him back, padding down the steps in her pigtails and sherbet-striped pants and pointing to one of the boxes: "Daddy, we're going to Canada." Then she mumbles something else.
"Did you hear that?" her father asks, sullen again. "She said, 'And all my friends are staying in Schaumberg,' "meaning the suburb next door where her school is.
The bare home evokes memories. Like those two suitcases lined up in the hallway, signs that he's lost the game now, but once symbols of freedom and infinite possibility.
Sathya used to brag that he lived out of suitcases when he was younger, single and tooling around America on his student visa, visiting friends in Houston, getting his third graduate degree at UCLA.
Even when he decided to get more serious, to accept a job and apply for his H-1B, he still had that bit of swagger. When he crossed the border through Mexico as an H-1B applicant in 1994, he joked with the immigration official, a guy not much older than he. The guy asked what he'd been doing in L.A., and Sathya told him.
"They got a good basketball team," is all the guy said before stamping. Not: What's your purpose here? How do you intend to support yourself? What property do you have back in India? When are you going back?
The visa came through about four weeks later. He couldn't see it at the time, but now he knows what it did to him, how it changed his psychology. Before that, he never would have considered buying a house.
Suddenly he found himself sitting on his suitcase one night, making a list of desirable cities, acceptable price ranges for a home, seeing straight through to old age. He moved to Chicago to join a computer consulting firm. One year later, he flew back to India in search of a bride. His mother arranged it all. She found 10 girls she thought he might like, daughters of friends of the family.
Sathya was drawn to one, the smart, level-headed, pretty Asha. They were married right then, and soon she joined him on her own H-1B, as a computer consultant. A year and a half later, Asha was pregnant.
Now there were more plans. With two salaries totaling six figures, they bought a house, cream and brick in a tasteful development called Huntington Village. New, nothing used, just like the rest on the block. But they picked this particular one because the school bus stopped right at the mailbox.
Two years later, and Sathya himself had changed. He'd become the kind of person who sets things up, a planner. Not "fatalistic" and come what may and suffering from the "manana syndrome," like the Indians back home. But a doer, a planner. Like an American.
"We planned, we hoped, we hoped, we wished, we wished, we dreamed," he says. "But hope, wish – all those things don't mean anything now."
One night they talked over a new plan, one that would unravel all previous plans. They heard from a friend whose H-1B ran out last year that Canada gives young, highly skilled immigrants an instant green card, "easy as filling out a credit card application," Sathya says.
So that's where they decided to go, at least for a while. In a year, Sathya can apply for a new H-1B and start the whole process all over again. Or the family could stay in Canada. Or go back to India.
Their last full day in the United States arrives. The moving truck has come and gone, taking whatever they didn't sell. Tomorrow they turn over the keys to the new owners.
"Tonight will be very depressing," because the family has to sleep on the floor. "[Shraya] can't even have her own bed anymore."
Tomorrow they'll get in the minivan and head out to Toronto. They'll stop in Guelph to visit their friend Raj Advani, the one who sold them on Canada , who will tell them what to expect. Advani went there about nine months ago, after his own H-1B ran out.
Advani is looking forward to the visit too. He has a decent apartment and a good job, but not many friends. And it all feels temporary.
"It's like doing time," says Advani. "And if I seem calm, it's just because I've turned to stone."
It's moving day and Sanjay loads up the last of the stuff in the minivan. They take with them precious few things--some toys for Shraya, the car seat, some technical books, plus that piece of paper, the cause of his grief. "I don't know why I keep it," he says. "I should burn it." But then, that's no way to push off. So he adds: "Just kidding," in his studied American cool, before driving away.
This story was first published in Sept. 2000.
So what's going on in the tumultuous H-1B world?
By Jennifer Wipf
As if visa processing isn't uncertain enough in its own right, the big H-1B blunder by the INS has left many foreign workers in an even more precarious situation. While law makers and corporate decision makers continue to duke it out over whether and how to limit these ever-sought-after specialty worker visas, many are left to ponder their potential futures as H-1B holders. And all this at a time when the United States is experiencing a significant shortage of technology workers. Go figure.
H-1B visas enable notably skilled foreign workers — often those in high tech jobs — to come to the U.S. to fill specific positions. The cap for the last fiscal year was 115,000, and was hit in August of 1999. The current demand for high-techies has companies fighting for a higher cap as human resource execs bite their nails trying to do their jobs. One pending bill even requests an additional 65,000 visas for those with advanced degrees, and many still call that a conservative number. To add a little more spice to the mix, with the presidential election coming up in November, this has naturally become a major political debate with high stakes for those involved.
Things started to go awry last year when a possible combination of software and human error glitches at the Immigration and Naturalization Service resulted in the agency's granting of 10,000 to 20,000 too many H-1B visas for the period ending September 30th.
Initially, employees panicked that some 10,000 to 20,000 employees could conceivably be told to pack it up and head home. It won't happen, promises the INS, which has thus far made some vague references to a "compromise with Congress" and has contracted Big Five accounting firm KPMG Peat Marwick to conduct an audit of the H-1B count FY 1999, with recommendations for improvements.
In a letter to Attorney General Reno, Senator Abraham pointed out that the INS' own instructions on how to count visas need to be carefully scrutinized as a possibly major contributing factor to the errors. Apparently, there may be a mix up between tabulations of approvals and actual conferral of visas.
Also cited is "evidence from INS' own instruction sheets and briefings that it has been inflating the visa count," which means we really don't know for sure how high or low the miscount actually is. Leave it to the good old INS to leave us back at square one, scratching our heads.
The agency also recently announced that last June's statement on the number of H-1B visas filed in fiscal 1998 by the top 20 U.S. companies, was filled with inaccuracies. Interestingly enough, one of those companies was KPMG.
According to INS spokeswoman Eyleen Schmidt, the INS is holding off on any and all decisions until the count is in. KPMG is expected to deliver later this month, but a detailed report on causes and recommendations won't be in until Late winter or early spring.
There are two things that definitely won't happen says the INS: The agency will not revoke any already approved H-1B visa petitions (phew), nor will it assign the surplus to previous years when a quota was unmet (shucks).
But the agency is still considering a deduction of the surplus from this year's quota, and that has many critics up in arms. Citing the political heat involved, however, many suspect that Congress may not want to cut into the cap when the GOP has, in fact, been eyeing an increase with growing enthusiasm.
These reporting problems and uncertainties are not being taken lightly by employers who make major hiring and organizational decisions based on the numbers they thought they could count on.
But the INS has promised to clean up its act, and quickly.
We shall see.
(Editor's Note: Jennifer Wipf originally wrote this article for the Immigration Newsman in Oct. 1999. She also writes for the popular website About.com on immigration issues.)
20,000 H-1B visas issued by mistake
Immigration officials blame computers for erroneous dole outs
By Ricardo Gonzalez
Oops. It's not exactly due to the Y2K computer bug, but the federal immigration service sure wished the explanation was that simple.
The Immigration and Naturalization Service (INS) mistakenly doled out as many as 20,000 visas to foreigners with high-tech skills during the just-ended fiscal year, prompting angry complaints from Congress.
Immigration officials notified lawmakers last week that, because of a computer system miscommunication, they had exceeded the congressionally imposed cap of 115,000 H-1B visas for the year ended Sept. 30 by 10,000 to 20,000.
INS is contracting with an independent auditor to determine exactly how many extra visas were issued, agency spokeswoman Maria Cardona said. The error occurred when visa approval numbers from the four INS service centers that process H-1B applications didn't get into the agency's main computer system in Washington that tracks totals, she said.
This story first appeared in the weekly Immigration Newsman on 11/05/99.
Industry's Demand for Skilled Immigrants Outweighs Quotas
THOUGH it is hailed by politicians and its own tycoons as a powerhouse of economic growth, America 's technology industry is not the sort of engine that runs smoothly. Choked of fuel, it can stall, always running the risk of losing momentum.
Ron Rose is one of the mechanics who keep it running. In a comfortable law practice well removed from Silicon Valley 's traffic and tension, Rose uses his wits to finesse the system controlling one of the Valley's most important fuel supplies.
The supply lines carry human ingenuity, a commodity that sits in stockpiles throughout Silicon Valley, and yet is always in shortage.
As an immigration lawyer, Rose helps import the thousands of skilled immigrants who come to the United States under H-1B visas, 115,00 of them over the past year and just as many in the year ahead, according to the quota system that controls the flow.
Right now, he is busier than ever. His small firm, Rose Rix & Bennet, has doubled in size to six lawyers in the past two years on the strength of its immigration practice and he is processing 50 to 100 visas each month for clients including Microsoft, Ericsson and Fujitsu.
"We've got one major issue — speed," he says. Because big technology companies are growing so quickly, and because small startups are poaching so much talent, the industry needs foreign workers in a hurry. Software programmers, hardware engineers, networking experts and website managers are being sought by everyone from chipmaker Intel to the latest online retailer.
With the nation's unemployment at 4.1 per cent, its lowest level since 1970, there are just not enough locals to go around.
The result is a long queue for visas. A lucky few extend their visas up to six years and can eventually become permanent residents. "On the one side we have high-tech companies with a timeframe of ASAP," Rose says, leaning back in his chair in one of the law firm's t small rooms. "Juxtapose that to the government, which has no specific timeframe by which they have to do anything, which has no competition, and which has no financial motivation to do things faster."
Rose works a world away from Silicon Valley. Rose Rix & Bennett is in Half Moon Bay, a tiny seaside town just south of San Francisco, barricaded against the Valley by the Santa Cruz Mountains.
From this retreat, Rose finds ways to accelerate the immigration process. There is no more important time to do that than now. Autumn or “the fall” is peak season for skilled immigration, a time when the annual quota of H-1B visas gets allocated.
There are ways around the H1-B. Australian companies with branches in the US, for instance, can gain inter-office transfers of skilled employees using an L-1 visa. Foreign companies that conduct trade or investment in the US can apply for El and E2 visas. And for people with extraordinary skills in academic studies or the arts, there is the 01 visa.
But it is the H1-B, because it is the primary conduit for so many, that fires arguments. Although government leaders are buoyed by the economic growth of the technology business, the idea of opening the border to more skilled foreigners is too hot to handle.
Immigration simmers on the American political agenda as it does elsewhere, cutting across the old left-right alignments of the cold war to unite the kinds of social conservatives who cannot adjust to either the dry economics or the liberal social philosophies exemplified by Silicon Valley.
"It's very emotionally charged, but people forget that in this country, unless you're a native American, everybody immigrated," Rose says. "America is really more of a concept, it's an immigration mindset." Still, he does not expect any change on the issue in the near future, particularly not during a presidential election cycle.
This story first appeared in the weekly Immigration Newsman on 11/05/99.
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