Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010

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 BAR BULLETIN FOCUS: IMMIGRATION LAW

For almost 50 years, the U.S. economy has benefited from the contributions of H-1B foreign professionals. Uniquely talented and highly skilled foreign workers are given the opportunity to become part of the American Dream. They are given the standard benefits to which every U.S. employee is entitled, and are protected by safeguards set up by federal agencies such as the Department of Labor’s Wage and Hour Division (WHD), the Internal Revenue Service (IRS), and the United States Citizenship and Immigration Services (USCIS).

The H-1B system enables United States employers to seek highly skilled workers from around the world to increase productivity and develop new innovations within their fields, which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies, as previously stated.

The majority of U.S. employers who utilize the H-1B visa system do obey employment and immigration laws. However, the employers that abuse the system cause the perception that the system is corrupt, abusive and a strain on the U.S. economy.

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still being a holder of the visa. It enables a foreign worker to enter the U.S. to work temporarily in a specialty occupation for a U.S. employer. The regulations define “specialty occupation” as requiring a theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor, and requires the attainment of a bachelor’s degree or its equivalent as a minimum. To qualify as an H-1B “professional”, the applicant must be a foreign worker and must have at least a bachelor’s degree or its equivalent. The degree must be in or similar to the field in which the applicant intends to work. The applicant must demonstrate that a professional job offer exists which closely parallels the training and background of the particular employee. Foreign workers may not petition for an H-1B visa on their own; they must first find a sponsoring employer. By far, the most H-1B visas are issued to people from India, with the second-largest number coming from China.

There are several limitations imposed by the H-1B visa, the most significant being the congressional cap of 65,000 H-1B visas allocated per fiscal year. All new H-1B foreign applicants are subject to the cap. The duration of stay is three years, which may be extended to a maximum of six years. Exceptions to the length of stay apply in certain circumstances. The clock begins to tick on the six-year maximum once the foreign applicant arrives in the U.S. It stops every time the foreign applicant travels outside of the U.S., resuming when they return to the U.S., and so forth.

After a foreign worker’s H-1B visa expires, he/she must leave the country for no less than one year, after which the foreign worker may reapply for the H-1B visa. Due to this restriction, many H-1B holders exercise their dual intent and apply for permanent residence through the green card process.

Immigrants act as complements, not substitutes, for American labor. The cost of finding and employing foreign workers can run as high as $10,000 - $15,000 per employee with legal fees, filing fees and other expenses. The H-1B program is not about cheap labor; it is about keeping the U.S. competitive with the best talent available.

Kellie N. Lego is Managing Attorney for the MVP Law Group, P.A., in Burtonsville, Maryland.


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Publications : Bar Bulletin: August 2010

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