The INA applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability, using the H-1B nonimmigrant visa classification. The H-1B1 program is for hiring nonimmigrant aliens from Chile and Singapore as workers in specialty occupations and the E-3 is for hiring nonimmigrant aliens from Australia as workers in specialty occupations.
The INA allows employment of alien workers in certain specialty occupations (generally those requiring at least a bachelor's degree or its equivalent). Foreign workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B, H-1B1, and E-3 visa classification.
Additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules. An H-1B dependent employer is, generally, one whose H-1B workers comprise at least 15 percent of the employer's full-time equivalent employees. Different thresholds apply to smaller employers. H-1B dependent employers that hire H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules.
After the Department of Labor certifies the LCA, the employer will petition the U.S. Citizenship and Immigration Services (USCIS) for approval to employ a specific alien worker under H-1B status. For H-1B1 and E-3 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H-1B visas.
H-1B, H-1B1, and E-3 workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking bona fide "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract
More detailed information may also be obtained by contacting theOffice of Foreign Labor Certification( -labor) or the Wage and Hour Division( ) (1-866-4-US-WAGE /1-866-487-9243). Information on how to submit a petition requesting an H-1B, H-1B1, or E-3 visa may be obtained from USCIS.
The U.S. House Judiciary Committee has approved a bill to make it easier for H-1B workers from India, in particular, to get green cards. Although the Democratic sponsors called the bill bipartisan, debate with Republicans late Wednesday suggested a different story.
This legislation, the Equal Access to Green Cards for Legal Employment (Eagle) Act, also affects employers' use of the H-1B work visa program. Under this bill, employers will provide public notice of new H-1B positions to a Dept. of Labor website, including salary or wage range information, benefits, location and description of the job.
The bill, which will move on to the House floor, also restricts H-1B employment to no more than half of an employer's workforce, a provision aimed at the heaviest users of the visa, offshore outsourcing firms. The bill doesn't expand the number of H-1B visas or employment-based visas issued per year, but it will reshuffle how green cards are issued.
"Because of the per-country caps, foreign nationals from some countries must wait decades in the immigrant visa backlog," said Committee Chair Jerry Nadler, D-N.Y. "In some instances, the backlog is so long that the promise of a green card is practically illusory."
Under today's visa rules, no country gets more than 7% of available employment-based green card visas. Most people who obtain green cards first start on a temporary H-1B work visas. About 75% of visa holders are from India and can wait decades for a green card for permanent residency because of the per-country cap. If the per-country cap ends, applicants will be in one long line and the green cards will be distributed first come, first serve.
Congress has tried to get rid of the per-country cap before. In 2019, in a bipartisan 365-65 vote, the House approved a bill to remove the per-country caps, but it didn't advance in the Senate. Although the 2019 bill passed with considerable Republican backing, its members may not be as eager to lend support this time around if their opposition on the Judiciary Committee is a preview of what's ahead.
In February 2021, the U.S. Citizenship Act (H.R. 1177), developed by the Biden administration, was introduced in Congress. The bill contained many immigration provisions and would have put an end to the employment-based immigrant backlog within 10 years. It included a higher annual green card limit, eliminated the per-country limit, provided permanent residence for those waiting with an approved immigrant petition for 10 years and excluded dependents from being counted against the annual limit. (See here.) It also would have exempted individuals with Ph.D.s in STEM (science, technology, engineering and math) fields from numerical limits.
In June 2022, Grassley asserted he was against including immigration measures in a non-immigration bill. Critics pointed out Grassley had no problem, indeed lauded, including a restrictive measure on EB-5 immigrant investor visas in a non-immigration bill only a few months earlier (March 2022). It appeared evident that Grassley opposed any liberalization of U.S. immigration laws, no matter how beneficial economists and others believed a specific provision would be for the country and claimed a procedural reason.
Senate Democrats approached Grassley with iterations of the Ph.D. STEM provision, but he refused to budge, according to sources. He did not vote for final passage or the motion to proceed to the bill on the Senate floor (a 64 to 34 vote) but got his way on the legislation. The final bill included no measures to exempt Ph.D.s in STEM fields from green card limits or any other significant positive immigration provision. (The legislation was H.R. 4346, renamed the CHIPS Act of 2022.)
House and Senate Democrats and the Biden administration have supported or proposed several bills and measures to reduce the employment-based green card backlogs and exempt highly skilled foreign nationals from immigration quotas. Senate Democrats did not sacrifice a chance to pass the CHIPS Act after Sen. Grassley opposed including a STEM Ph.D. exemption.
Losing current H-4 EAD holders from the workforce would seriously hurt our economy, costing the U.S. $5.5 billion annually in GDP contributions and $2.5 billion annually in state and local tax revenue.
No more than 7% of the visas in a given year, meanwhile, can go to applicants from a single country of origin. Those per-country caps create particularly long wait times for applicants from India and China, the biggest sources of high-skilled immigrants on H-1B temporary work visas.
Those specialty occupation visas are the most popular category for workers in tech, engineering, or medical fields where US employers struggle to find home-grown talent. Most employment-based green card applicants have already been in the US working for years on H-1B visas, which have outpaced available green cards in growth thanks to the tech boom.
Green card backlogs and uncertainty over their long-term status in the US could deter talented workers from immigrating to the country. And colleges and universities have struggled to rebound from a decline in international enrollment that began even before the pandemic, raising concerns about the foreign talent pipeline.
Other proposals have called for lowering barriers to green cards for high-demand workers such as doctors, nurses, and engineers, and creating new visa categories for entrepreneurs who start businesses in the US.
The U.S. Departments of Labor and Homeland Security have published a temporary final rule (TFR) increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of no more than 64,716 additional visas for Fiscal Year (FY) 2023 positions to employers that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. Of the 64,716 visas available, up to 44,716 are limited to H-2B returning workers, and up to 20,000 are reserved for nationals of the Northern Triangle Countries (Guatemala, El Salvador, and Honduras) and Haiti. The TFR provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers.
The Department of Labor will conduct two virtual listening sessions, one for employers and their representatives and another for workers and their advocates to gather input about possible changes to the H-2A regulations. Our goals are to listen, engage the public, and hear from many voices who could be impacted by potential changes to the regulations.
To keep the public informed regarding the submission and assignment of H-2B applications for review, the Office of Foreign Labor Certification (OFLC) published the Assignment Group(s) for 1,360 H-2B applications covering 29,856 worker positions with a work start date of October 1, 2022. Since the number of the H-2B applications received during the three-day filing window collectively requested fewer worker positions for certification than the number of visas available under the semi-annual visa allotment for the first half of Fiscal Year 2022, all H-2B applications filed within that time period that requested workers starting October 1, 2022, were randomly given a unique number in accordance with OFLC's randomization process and placed into the same group for assignment to analysts for review and processing. 2b1af7f3a8