Introduction
The
United States Immigration and Nationality Act (INA) governs who can
legally enter the country, how long they can stay, and under what legal
restrictions they can live and work.
The INA currently has 70 nonimmigrant visa categories that people
can use to enter the United States for other than permanent
immigration. Of these 70
different categories, the H visa category is the largest, and the H-1B
visa is the largest H sub-category.
H1-B Background
The
H-1B visa, in its current form, was established by Section 205 of the
Immigration Act of 1990 (P.L. 101-649) and updated by Title
IV of P.L. 105-277 (the FY1999 Omnibus Consolidated and Emergency
Supplemental Appropriations Act). These laws established several
major criteria for the H-1B program.
They defined H-1B visa holders as aliens who have “specialty
occupations” and who hold at least a bachelor’s degree.
The
laws stipulated that the employer of an H-1B employee must pay the worker
the prevailing (market) wage for that job. Additionally, the employer must
make efforts to hire domestic employees before applying for an H-1B
visa. Lastly, the laws
established a fee that goes towards providing scholarships and grants to
train workers domestically in the technical skills that cannot be
currently found. The H-1B visa allows
the visa holder to work in the country for three years, with the ability
to be renewed for a second three-year period.
H-1B Ceiling
The
booming high-technology industry of the late-1990s caused a severe
shortage of computer related workers. To address fears of worker
shortages, Congress passed legislation in 1998 to dramatically raise the
number of H-1B visas from 65,000 (set by the INA in 1990) to 115,000 for
1999-2000 and 195,000 for 2001-2003.
At the end of FY2003 (September 31, 2003), the caps reverted to the
65,000 ceiling set by the INA.
In 1997, the annual visa ceiling (65,000) was reached by May. In 2000, the ceiling (115,000) was
reached by June. With the
recent stagnation of the high-tech sector, H-1B requests are expected to
be lower this year; however, they are still expected to exceed the ceiling
unless Congress acts to raise it.
There are currently no plans to raise the ceiling, however, debate
is expected as the number of visas given approaches the cap.
Snapshot of H-1B
Holders
By
law, holders of H-1B visas must have a bachelor’s degree (or the
equivalent) and be proficient in a technical specialty that is not easily
supplied by the domestic workforce.
In 2001, the last year for which statistics are available, 58.1% of
all H-1B holders had a bachelor’s degree, with 29.6% holding master’s
degrees and 7.5% holding their doctorates. The remaining H-1B holders have
professional/vocational degrees, or fall into a loophole created for
“fashion models”.
Also
by law, companies are required to pay H-1B visa holders the prevailing
wage for the industry. As
such, the average income in 2001 (last year for which data is available)
for people newly arriving on an H-1B visa is $51,860. This figure goes up to $65,000 for
H-1B workers who have applied for and been granted the three year
extension.
Hi-tech workers comprised
the vast number of H-1B visa holders in 2001 (again, the last year data is
available), comprising 55.3% of all new incoming visa holders. “Architects, engineers and
surveyors” are a distant second, comprising 12.7% of arriving H-1B
holders. Administrative
(7.8%), Teachers (5.9%) and Health Professionals (5.4%) are the other
major categories using the H-1B visa to enter the United States.
India
is by far the largest user of H-1B visas, taking 45.2% of the total in
2001. For comparison, the
next largest users are China at 8.4%, Canada at 4.6% and the Philippines
at 3.6%. Pakistan took 1.9%
of all H-1B visas in 2001.
Legislation
There
are three pieces of legislation currently pending in Congress that aim to
either modify the program or eliminate it entirely. The first is the “USA Jobs
Protection Act of 2003” (S. 1452/H.R. 2849). In current law, if a company has
more than 15% of its employees on H-1B visas, it must certify that it has
not laid off any domestic employees for 90 days before or after the hiring
of an H-1B visa worker. The
bill would expand this provision to all companies who hire H-1B workers
and expand the time period to 90 days before and 180 days after the hiring
of an H-1B worker.
S.
1452 was introduced by Senator Chris Dodd (D-CT). The bill has no other cosponsors,
and was referred to the Senate Judiciary Committee, where it has not had a
hearing. H.R. 2849 was
introduced by Congresswoman Nancy Johnson (R-CT). Her bill has 21 cosponsors, and
was referred to the House Judiciary Committee’s Subcommittee
on Immigration, Border Security, and Claims. It has
not had a committee hearing.
The
other pieces of legislation currently pending in the US Congress regarding
H-1B visas are both in the House of Representatives. H.R. 2235 would suspend the
issuing of new nonimmigrant visas (including H-1B) until the Department of
Homeland Security is able to fully screen all incoming immigrants and
nonimmigrant visa holders.
This bill has 2 cosponsors, and was referred to the House Judiciary
Committee’s Subcommittee
on Immigration, Border Security, and Claims. It has
not had a committee hearing.
H.R.
2688 was introduced by Congressman Tom Tancredo (R-CO) on July 9, 2003,
and would end the H-1B program entirely. This bill has no cosponsors, and
was referred to the House Judiciary Committee’s Subcommittee
on Immigration, Border Security, and Claims. It has
not had a committee hearing.
Additionally,
on July 24, 2003, the House of Representatives passed H.R. 2738 and H.R.
2739, the Chile and Singapore Free Trade Agreements (FTA). The Senate passed its version of
the bills (S.1416 and S. 1417) on July 31, 2003. Within these bills was a provision
to reserve a certain number of H-1B visas specifically for workers
entering from Chile (1,400) and Singapore (5,400). This inclusion of H-1B visas in
the FTAs was controversial because it took away the power of Congress to
set immigration law and placed it in the hands of trade negotiators
(Congress was forced to vote on the negotiated treaties without
opportunities to modify them).
However, the trade treaties passed and were signed into law on
September 3, 2003 – including the H-1B
provisions.
