As an immigration lawyer in Houston, H-1B visas are on my radar. On March 19th, CBS 60 minutes covered the H-1B visas and its “outsourcing of American jobs to foreign workers, often at lower pay.” The show interviewed individuals who claimed they were required to train H-1B workers who then replaced them for less pay.
The most common narrative surrounding the H-1B visa is that it enables foreign workers to enter the United States and take jobs from American workers while accepting lower pay. Critics argue that the H-1B visa was created to allow American companies to hire the best foreign talent in order to increase American competitiveness in the global economy but loopholes have allowed companies to bring over cheap foreign labor that depresses wages across the American economy.
The 60 Minutes segment focused on cheap foreign labor replacing U.S. workers, and “loopholes” in the law. However, what 60 Minutes did not cover is the legal requirements of the H-1B and the procedures for complaining about abuse of the H-1B visa. Any visa could potentially be misused, including tourist visas, student visas, work visas, and even fiancée visas. However, the H-1B visa program expressly provides for the protection of wages of American workers and the narrative surrounding the program rarely includes this fact.
What is the H-1B Visa?
H-1B is a non-immigrant (temporary) visa that was created for employers to petition for foreign professionals in “specialty occupations.” The visa category was created in 1990 by the Immigration and Nationality Act (INA). The INA states that the hiring of a foreign worker cannot “adversely affect the wages and working conditions of U.S. workers working in the occupation in the area of intended employment.” The law provides for several protections to ensure that this adverse effect on U.S. workers does not occur:
- Labor Condition Application (LCA),
- Employer attestations, and
- Prevailing wage requirement.
Labor Condition Application
The Labor Condition Application (LCA) is a document that is submitted to the U.S. Department of Labor by every employer petitioning for a H-1B worker. The LCA is a requirement in the H-1B process to ensure that foreign workers do not displace or adversely affect the wages or working conditions of U.S. workers. The LCA states job offered, the location in which the employment will occur, and the prevailing wage for this work according to the Department of Labor.
Employers must post a notice that they are filing an H-1B petition which states the offered wage in a conspicuous area of the workplace where employees will see it. The LCA becomes a matter of public record and the employer must make these records available to any member of the public who wishes to see them.
After an LCA is submitted, an employer must wait for the Department of Labor’s approval of the application before the employer can file an H-1B petition with U.S. Citizenship and Immigration Services. The LCA protects American workers by requiring that the employer make four attestations in the LCA:
Employer Attestations
H-1B employers when they sign the LCA must make four attestations:
- The employer will pay H-1B workers at the prevailing wage level,
- The employment of H-1B workers will not adversely affect the working conditions of U.S. workers,
- That at the time the H-1B application is submitted, there is not strike or lockout at the employer’s workplace, and
- The LCA notice has been given to current employees.
These attestations are designed to protect American workers from exploitation by their employers using the H-1B program. The attestations ensure that the employer is not hiring H-1B workers at a lower wage or to break a strike. It also requires that the employer promise that the hiring of the foreign worker will not negatively change the working conditions of U.S. employees in similar roles. Among the four attestations, the prevailing wage requirement is the one that provides the most substantive protection to American workers.
Prevailing Wage
Employers using H-1B workers must pay those workers the same wage level paid to all other individuals with similar experience and qualifications for that specific employment, or the prevailing wage for the occupation in the area of employment. This wage is determined through sources such as the State Workface Agency or the Online Wage Library.
The employer must pay 100% of the prevailing wage and can be investigated if the Department of Labor has reasonable cause to believe the employer is violating this wage requirement. This requirement means that an employer hiring a H-1B worker should not be saving any money on wages as compared to hiring a U.S. worker.
Numerical Limitations on H-1B Visas
In the early years of the H-1B visa, a total of 115,000 H-1B petitions could be accepted and approved each fiscal year. In the last several years, the fiscal year limit was reduced to 65,000 for applicants with the equivalent of a bachelor’s degree or higher, and 20,000 for applicants who earned a master’s degree from a United States university.
In the last three years there have been three to four times as many applicants as there are numbers available. Thus, the annual numerical limits have effectively prevented some employers from using the H-1B visa program at all.
However, non-profit research institutions and entities that have “an affiliation with or relation to” an institution of higher education are exempt from numerical limits and can file H-1Bs at any time. The intent behind this exemption is to allow research institutions and universities to retain talent.
Fraud Detection
In 2008, USCIS established the Fraud Detection and National Security (FDNS) which is funded by filing fees paid by H-1B petitioners. The Fraud Detection unit can randomly visit or audit the H-1B records of any company. If noncompliance is discovered, an employer can be fined, an H-1B petition can be revoked, and an employer can be prevented from applying for H-1Bs in the future.
On April 3, 2017, USCIS announced that it would implement further measures to detect fraud in H-1B visa petitions and target abuse of the H-1B visa program. The announcement notes that USCIS will more heavily scrutinize H-1B petitions in the following circumstances:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
The announcement notes that USCIS will employ “targeted site visits” to “focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” At the same time, random and unannounced site visits will continue with the goal if identifying employers who abuse the system as opposed to targeting H-1B visa holders for criminal or administrative action.
In addition, USCIS established a new email address, ReportH1BAbuse@uscis.dhs.gov, through which American workers and H-1B workers can report violations or other information about H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution. Complaints about H-1B abuse can also be submitted to the Department of Labor and Immigration Customs Enforcement. See the USCIS site on Combating Fraud and Abuse in the H-1B Visa Program.
Immigration Lawyer in Houston: H-1B Visas
There is no doubt that the H-1B program can be improved. However, the discussion surrounding the program often takes as fact that H-1B workers are entering the United States to work for substantially less in the same jobs as American workers. The LCA, employer attestations, and the prevailing wage requirement are all aspects of the H-1B visa that are designed to prevent this very situation from occurring.
Moreover, recent announcements indicate that H-1B employers may be more heavily scrutinized. If you are an employer and you have H-1B employees, talk to an experienced immigration attorney to make sure you are in compliance with DOL and USCIS requirements.
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