It is unfortunate that there are many voices arguing against legal immigration programs for skilled labors like the H1B visa without having any first hand understanding of how it actually works. I was an H1B visa holder and today I am a proud U.S. citizen. I'd like to share with you my own experience in order to clarify some common misunderstanding about this program.
HIB visa holders are not immigrants. H1B visa is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). This visa program allows U.S. employers to hire foreign workers on a temporary basis, usually for up to 3 years. The federal government sets an annual cap of 65,000 H1B visas to be issued, with an additional 20,000 visas for people who have masters degrees or higher. H1B visa holder is allowed to extend the visa once at the end of the 3-year term for another 3-year term. So in total, an H1B visa holder can legally work and stay in the U.S. for a maximum of 6 years. At the end of 6 years, the visa holder has to leave the U.S. unless he/she becomes an immigrant through other channels, i.e. marriage, employment, etc. In my own case, I had been an H1B visa holder for six years and became a U.S. citizen in the end through marriage.
H1B visa holders have to meet very high qualification standards. Not everyone can apply for an H1B visa because the bar is set very high. For the education requirement, a bachelor degree is a minimum. When I was offered a job at Citibank through the H1B program, I had earned two master degrees from two accredited U.S. universities. A lot of my friends who are H1B holders also have at least one master degree from an accredited U.S. university. In addition to a master degree, many H1B visa holders including myself also have professional licenses or certifications in our specialized field. However, having a good education is not enough. The United States Custom and Immigration Services (USCIS) requires that an H1B visa holder can only be hired to fill occupations where "the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree." USCIS requires both the employer and employee to give a very detailed description of what the job duties entail and how the field of study relates to the specific occupation the employee is intended to perform. Here is an excerpt from the USCIS of what constitute a detailed description:
"A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.
Written opinions from experts in the field explaining how the degree is related to the role you will perform."
H1B visa holders are not cheap laborers. Unlike the popular misunderstanding, an employer cannot just pay a foreign worker as little as possible. The Immigration and Nationality Act (INA) requires that hiring foreign workers can't harm the wages and working conditions of American workers. To comply with this statute, the Department of Labor (DOL) requires employers to demonstrate that "the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment." The DOL website defines the "prevailing wage rate" as "the average wage paid to similarly employed workers in a specific occupation in the area of intended employment." An employer can't just claim the salary he/she is going pay is the prevailing wage rate. The employer either has to submit a request to the National Prevailing Wage Center (NPWC) to obtain what the prevailing wage is for the position or get it from an independent authoritative source.
Since most H1B visa holders are well educated and highly skilled, it is a no brainer that they are well compensated. A Heritage Foundation study shows "The median H-1B employee earns $74,250 a year-90 percent more than the median private sector salary of $39,100. The average H-1B salary of $78,600 is 50 percent above that of the average U.S. worker's of $50,300." If you want to check it out by yourself, click here to view current H1B job postings and wages.
A H1B visa holder is often a more costly and risky option for employers. Hiring a foreign worker on a H1B visa is not a cheap alternative. First, the hiring process is much longer and more costly than hiring an American worker. After a job is first posted, every applicant, foreign or not, has to go through the same screening and interviewing process. I went through 5 interviews. When Citibank made me the offer, it was contingent upon the approval from the Department of Labor. This approval process is commonly referred to "Labor Certification", which is a complicated, time consuming and costly process. Part of the process was for Citibank to continue advertising the position they offered me for three additional months in national media. Citibank also had to disclose my salary in the advertisement. Any American could contact Citibank to object to my hiring and apply for the same position. Citibank had to go through the entire hiring process until it could prove that I was more qualified.
Once a foreign worker is identified, an employer typiclly bears all the filing and legal fees for H1B visa, which usually include the following:
Standard H1B filing fee: $325 per person
ACWIA (Training) H1B Fee: an employer must pay $1,500 towards a program dedicated to train American workers.
H1B fraud fee: employer is required to pay $500 fraud prevention fee per application.
Premium processing fee: a normal H1B application process takes about 2-6 months. The premium processing can shorten the process to 15 business days if the employer is willing to pay an additional $1,225.
Legal fee: Employers usually hire immigration lawyers to handle the entire process. Depends on how long the process will take eventually, the cost of lawyers is usually several thousand dollars.
So the total cost of hiring a foreign worker on H1B visa could be as much as $10,000. As mentioned earlier, employers are also required to pay H1B visa holders prevailing wages. Therefore, it is not exactly a bargain for employers.
In addition to cost and time, employers who hire foreign workers through the H1B visa program are exposed to other risks too. Keep in mind that H1B visa holders are not immigrants. When I was working for Citibank, our corporate lawyers and HR reps warned against me traveling internationally, because each time I left the U.S. for an overseas trip, I had to make an appointment with the local U.S. consulate to reapply for a visa to reenter the U.S. There was no guarantee that the local U.S. consulate would grant me a visa even if I provided evidence of employment. Therefore, each of my overseas trip became a headache for my boss because he had to be prepared that I might not come back and he would have to look for my replacement.
So why do employers go through so much trouble to hire a foreign worker like myself through the H1B visa program? They don't do it out of the kindness of their hearts, but out of necessity. The U.S. faces a skilled labor shortage. Yes, there are about 9 million Americans are looking for employment, yet according to the Department of Labor, 5.4 million job openings remain unfilled. The National Federation of Independent Businesses latest survey reported 44% companies could find "few or no qualified applicants for positions they were trying to fill." Highly educated and high skilled foreign workers, who are capped at 65,000 per year, are not the cause, but rather a small remedy to fill this skill gap.
Like all government programs, there is no doubt that the H1B visa program is also subject to abuse and fraud. We can always find anecdotal evidence of some employers or some employees who haven’t followed the rules. However, we can't throw the baby out along with the bath water due to a few bad apples. I agree our legal immigration system is outdated and badly needs reform. Let's explore free market based reform ideas , rather than shouting angry rhetoric.