08/05/2010

Fact Sheet: H-1B Guestworker Program

The H-1B guestworker visa program, administered by the U.S. Department of Labor (DOL), allows U.S. businesses to hire foreign workers for temporary employment in jobs requiring special skills and at least a bachelor's degree or the equivalent in the specialized field. Once DOL approves an application, the visa must be approved by the U.S. Citizenship and Immigration Services (USCIS). Here are some features of the program:

Employers, not employees, control the visa process
Employers must first file a Labor Conditions Application (LCA) with the DOL. By signing it, the employer certifies that, among other things, other workers similarly employed won't be adversely affected and that that the worker will be paid the greater of the prevailing wage for that job in that geographic area or the actual wage paid to other employees in the same position. The employer then files a petition with the USCIS. If the petition is approved, the employee can obtain the visa and travel to the U.S.

Employee cannot change jobs
H-1B visa holders may work only for the U.S. employer that petitioned the USCIS and only in activities described in petition. Changing employers is possible only if the new employer repeats the above steps before the worker is fired or quits his previous job. 

• Employees are vulnerable to exorbitant recruiting fees
There are no clear federal regulations to limit recruiting fees charged to H-1B guestworkers by unscrupulous labor recruiters. Employers are required to pay filing fees and anti-fraud fees totaling $820, but they frequently require the worker to pay this fee, as well.

• Employee must leave U.S. if terminated
If fired from the job, the H-1B visa holder has 10 days to leave the U.S. The employer is required to pay for transportation.

• Allows employment up to six years 
The initial visa may be granted for up to three years and may be extended for another three years. The employee’s spouse and children may live in the U.S. but cannot work unless they obtain their own work visas. The worker must spend at least one year outside of the U.S. before re-entering for a second six-year period. 

• A maximum of 65,000 H-1B may be issued each fiscal year. Certain exemptions apply for employers in nonprofit and governmental research organizations and institutions of higher learning, and for workers with advanced degrees.

• Approximately 247,000 petitions for H-1B guestworkers were filed with the USCIS in FY 2009. USCIS approved approximately 214,000 petitions; about 25,000 of those were in the category of "Education."