After the Debate: What You Need to Know about the H-1B Work Visa

Authored by Diane E. Metzger

Oct 29, 2015

During last night’s Republican Presidential debate, the H-1B work visa took front stage. Why? Because the H-1B visa is one of the most common visas employers use to employ high-skilled foreign workers. Yet the H-1B visa remains misunderstood.

To clarify any confusion about the work visa, here are some key H-1B visa facts:

H-1B Visa Takeaways:

H-1B Visas are for Skilled-Workers: The H-1B visa is a “specialty occupation” visa that is used to hire high-skilled foreign workers who have a Bachelor’s Degree (or higher) in a specific field. The higher educational requirements of the H-1B visa help to ensure that the visa is used only for positions for which U.S. employers typically cannot find qualified U.S. applicants.

Notably, most H-1B visas are used to support employees working in the Science, Technology, Engineering, and Math (STEM) fields, such as engineers, IT workers, physicians, etc. Thus, while some H-1B employers may find qualified applicants in graduates of vocational schools, the vast majority of H-1B positions require at least a Bachelor’s degree. A list of the Top 10 jobs for which the H-1B visa is used can be found here.

H-1B Visas do not undercut U.S. Worker Wages: Before a U.S. employer can sponsor a foreign national for an H-1B visa, the employer must certify to the U.S. Department of Labor (DOL) that it will pay the H-1B worker the higher of the government’s prevailing wage or the employer’s current salary for that position. Hence, H-1B employers already must agree to pay at least the wage set by the government for that type of position in that work location in order to use the H-1B.

However, since most employers hire an H-1B employee only after failing to find a qualified U.S. worker in the normal labor market, H-1B employers often end up paying more than the government’s required wage due to normal supply & demand pressures. Information about the average H-1B wages paid to H-1B workers in Missouri can be found here.

Penalties exist for H-1B Visa Abuse

During the debate Sen. Marco Rubio (FL) stated: “If you get caught abusing this program, you should never be able to use it again.” Current H-1B regulations have mechanisms in place to debar employers who have abused the H-1B program from using the program again. Other punishments include civil monetary penalties ranging from $1,000 to $35,000 per violation, as well as requiring back wages to be paid to H-1B employees who were not paid the required wage for the H-1B job.

Only 85,000 New H-1B Visas are available each FY

As noted in the debate, employers (including Facebook’s Mark Zuckerburg) have long been clamoring for an increase in the amount of new H-1B visas available each year. Under current immigration laws, only 85,000 new H-1B visas are available each government fiscal year.

In this year’s H-1B filing season, U.S. Citizenship and Immigration Services (“USCIS”) received approx. 233,000 H-1B visa applications from high-skilled foreign nationals each vying for one of these 85,000 slots. During earlier years of the H-1B program however, the government had authorized as many as 185,000 new H-1B visas each year. Therefore, in many respects the call from employers for more H-1B visas is nothing new, and reflects more a call to address supply & demand issues rather than a preference for hiring foreign nationals over U.S. workers.

If you have any questions about the H-1B visa or any other employment-based immigration issue, please contact Diane E. Metzger.

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