Date: Tue, 13 Dec 2005 22:50:33 -0800 From: Norm Matloff To: Norm Matloff Subject: full, careful explanation of H-1B visa requirements To: H-1B/L-1/offshoring e-newsletter I've been getting a ton of e-mail from readers of this e-newsletter regarding an article on H-1B in the December 13 issue of the Arizona Republic, available at http://www.azcentral.com/arizonarepublic/business/articles/1213H-1Bvisas13.html The article is for the most part balanced and accurate, but readers are upset that the reporter makes one major error, in which she says: * [H-1Bs] are admitted on the basis of their professional education, skills * or experience, and employers are required to seek U.S. workers first and * attest that they have not laid off a similarly qualified U.S. worker. * For immigrants, an H-1B is often a prelude to applying for status as a * legal permanent resident. This is incorrect. Employers do NOT have to attest that they have recruited American workers qualified for the job and they have not laid off any. Unfortunately, it is a frequent error. In order to settle this question once and for all, I will explain the issue in full detail, with citations in the form of Web links. A number of journalists are subscribers to this e-newsletter, and I hope they will refer fellow journalists who ask about H-1B to my posting here, which I will place at http://heather.cs.ucdavis.edu/Archive/H1BRequirements. (I am cc-ing this to Ms. Larson, the reporter of the enclosed article, so please do not bombard her with copies of it.) The main points are (details and citations below): 1. Except for a special category which affects only a minuscule number of H-1B employers, employers do NOT have to try to recruit qualified American workers before hiring H-1Bs. Employers do NOT have to attest that they have not laid off qualified American workers before hiring H-1Bs. In short, employers of H-1Bs do NOT have to give any kind of hiring priority to Americans. 2. Often the employer of an H-1B is also sponsoring the worker for a green card (U.S. permanent resident status). Employment-based green cards DO require the employer to have tried to recruit qualified American workers for the job as a precondition to filing the green card application. However, due to gaping loopholes, this requirment is easily circumvented. Here are the citations, first for the fact that H-1B employers do NOT have to give any kind of hiring priority to Americans: All the forms for various visas and immigration sponsorship--H-1B, employment-based green cards, etc.--are downloadable at the Dept. of Labor (DOL) Web page, http://workforcesecurity.doleta.gov/foreign/form.asp To obtain the form for H-1B, number ETA 9035, go to that page, click on "ETA9035" in the H-1B entry in the table, or get the form directly at http://workforcesecurity.doleta.gov/foreign/pdf/eta9035v50.pdf Now, in that form go to Section F-1, Subsection 2. You will see that the American recruitment and non-displacement requirements only apply to "H-1B dependent" employers. The latter is the minuscule category I mentioned earlier; more details on it below. You might wonder if there might be some other form in which the H-1B employer must attest to recruitment and non-displacement of Americans. There isn't. To see that, you can read the entire step-by-step H-1B procedure on another DOL page, http://www.dol.gov/dol/allcfr/Title_20/Part_655/20CFR655.700.htm Or, you can read the DOL testimony to the House, at http://judiciary.house.gov/OversightTestimony.aspx?ID=656 If you are still not sure you've understood the bureaucratic language in the above DOL Web pages, here are a couple of Web pages of nationally prominent immigration attorneys: * www.visalaw.com/04dec3/2dec304.html: This is the page of Greg Siskind. His firm is one of the largest immigration practices in the U.S. He is the author of The J Visa Guidebook, is a technology columnist for Immigration Law Today, and so on. On his Web page he says, "Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided." Note his use of the word "advantage"; the H-1B visa is attractive to employers because they do NOT have to recruit Americans for the job. * www.murthy.com/news/ukL1H1B.html: This is the page of Sheela Murthy. She has been a member of the Executive Committee of the Washington D.C. Chapter of the American Immigration Lawyers Association (AILA), Chair of the AILA Liaison Committee to the Department of Labor for Maryland, Virginia and Washington D.C., etc. On her Web page she says, "Neither the L nor H [visa] category requires advertising and recruitment proof, as is [by contrast] required for a labor certification in connection with a 'green card.'" If you would like still more proof, look at what prominent employers themselves say. In his September 16, 2003 testimony to Congress, Intel Human Resources Attorney Patrick Duffy said (emphasis added), "Our [H-1B hiring] guideline requires that, prior to extending an offer to an individual requiring temporary worker sponsorship, a business group must demonstrate that there is a shortage of U.S. workers with the skills required for the particular job and that the business has made good faith efforts to source qualified U.S. workers. We know that THIS GUIDELINE GOES ABOVE AND BEYOND WHAT IS REQUIRED BY LAW, but we think it is an essential part of our commitment to the United States" (see http://www.ilw.com/immigdaily/News/2003,0919-h1b.shtm). Similarly, Sun has stated that its policy is that "[Immigration status] is not a criterion for hiring or firing" (San Francisco Chronicle, June 25, 2002). Again, this is correct. As noted earlier, though the H-1B visa does NOT require employers to recruit Americans first, the employment-based green card process does. That has caused some confusion among some journalists covering this complex topic, especially since a couple of DOL's own Web pages conflate the two issues (http://www.ows.doleta.gov/foreign/hiring.asp and http://www.ows.doleta.gov/foreign). The source of the confusion of is the similarity of the terms "labor CERTIFICATION application" (used for employment-based green cards) and "labor CONDITION application" (used for H-1B). DOL's Web author (did they offshore this work?) understandbly confused the two. (DOL's page specifically about H-1B, www.ows.doleta.gov/foreign/h-1b.asp, gets it right.) Now, what about that minuscule exception category I mentioned above? This is for so-called "H-1B dependent" employers, defined to be those having more than 15% of their workforce consisting of H-1Bs. But since most H-1B employers don't have more than 15% of their workforce as programmers or engineers--they employ sales and marketing people, accountants, HR people, secretaries, etc., etc.--they could have 100% of their programmers and engineers be H-1Bs and yet still not count as "H-1B dependent." So, it is not surprisingly that only 50 out of 50,000 H-1B employers nationwide are in the "H-1B dependent" category, i.e. only 0.1%. (See the immigration lawyer's citation of this fact at http://www.usvisanews.com/articles/memo1192.shtml See also the original statement by the Dept. of Labor in the Federal Register, December 20, 2000, Volume 65, Number 245, page 80112: go to http://www.gpoaccess.gov/fr/retrieve.html, select Vol. 65, enter page 80112, and click Submit.) Now, what about the fact that employment-sponsored green card do require the employer to give hiring priority to Americans? This is very easily circumvented, because of numerous, huge loopholes in the law and regulations. I give details of how this is done in my university law journal article, at http://heather.cs.ucdavis.edu/MichJLawReform.pdf The situation was best summarized by an immigration attorney, who wrote an article explaining just how easy it is to circumvent the recruitment requirement: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). By the way, the misconception that H-1B requires recruitment of Americans is in most cases no accident. Industry lobbyists constantly meet with newspaper editorial boards and columnists, promoting the H-1B program. I am sure that more than a few of the lobbyists make the claim to the journalists that H-1B requires recruitment of Americans. The lobbyists also claim that evidence that the H-1Bs are underpaid is merely "anecdotal." That is simply false. There is a ton of data on this, including from two congressionally-sponsored studies. See the details in my university law journal article mentioned above. Moreover, some of the industry lobbyists claim that while some "bodyshops" underpay H-1B workers, the big firms do not. This is also false. For example, see my analysis of Intel H-1B salaries at http://heather.cs.ucdavis.edu/Archive/IntelH1BWages.txt Norm