What are H-1Bs?
- Temporary: H-1Bs are temporary foreign professionals
hired by a U.S. employer.
- Highly skilled: H-1Bs can be hired only for "specialty
occupations," those jobs requiring the equivalent of at
least a bachelor's degree in the field.
- Professionals: H-1Bs must be professionals such as doctors,
engineers, professors, accountants, lawyers, physical
therapists, and computer professionals.
How Many Enter and Where Do They
Come From?
Under current law, no more than 115,000 H-1B visas
can be issued in the next two years, with the cap dropping
to 107,500 in 2001. After 2001, the cap drops to 65,000 per
year. Even with these numbers, H-1B temporary professionals
comprise less than .1% of the U.S. workforce of more than
127 million people. The top 5 source countries for H-1B's
currently are India, China, Canada the United Kingdom, and
Philippines.
Why Do Employers Hire H-1Bs?
- Needed skills and Temporary Shortages: Employers hire
H-1B professionals to obtain essential technical skills
or knowledge that is relatively unique and not readily
found in the U.S. or to fulfill temporary shortages of
needed skills.
- Global market expertise: Employers often need H-1B professionals
to bring special expertise in overseas needs, markets
or trends that enables U.S. businesses to compete globally.
What Must Employers Do?
- Protect wages: Employers must pay a wage to every H-1B
worker that is at least as much as what is typically paid
in the region for that type of work ("prevailing wage"),
or what the employer pays existing employees with similar
experience and duties.
- Protect working conditions: Employers cannot use H-1B
professional to break a strike, and must notify their
U.S. workforce when they hire an H-1B professional. Employers
cannot make the H-1B nonimmigrants work under conditions
different from their U.S. counterparts, including hours,
shifts and benefits.
- Recruit in the U.S. and Not Displace U.S. workers: Employers
who use a lot of H-1Bs must first try to find U.S. workers
before they can hire an H-1B. They also must attest that
they are not hiring the H-1B if they have laid off or
displaced a similarly situated U.S. worker. Employers
must attest to the above protections by affirmatively
filing with the Department of Labor (DOL) and by maintaining
a file open to the public.
- Be subject to penalties: Failure to comply with DOL
regulations can result in an audit, civil and administrative
penalties, payment of back wages, and even debarment from
participating in key immigration programs.
WARNING: The following is article
discussing legal issues. It is not intended to be a substitute
for legal advice. We recommend that you get competent legal
advice specific to your case. If you would like such advice
from our office, call (415) 777-4445 or (916) 349-2900 or
(408) 993-9737.
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