Tag Archives: H-1B temporary visas

Responsible Ways to Increase Compliance with H-1B Visas

While critics often overstate problems with H-1B temporary visas, it is good policy to eliminate H-1B visa fraud in a practical manner. Perhaps the best way is to empower the potential victims of such fraud – H-1B visa holders. To the extent the current legal regime is insufficient to protect H-1B professionals it can result in individuals being taken advantage of, which harms the H-1B visa holder and, potentially, American workers.

Even if the typical H-1B visa holder is not an indentured servant, as critics allege, situations can arise that leave an individual vulnerable to exploitation. For example, one type of case is when a professional enters the United States but goes a number of months without working or being paid. Such an employer has acted illegally, since it is explicitly against the law to “bench” or place someone in a nonproductive capacity and not pay the individual.


To address these and other situations a number of measures can be taken that would enhance protections for H-1B visa holders and, indirectly, U.S. professionals.

First, Congress, USCIS and DOL should explicitly protect the immigration status of any H-1B visa holder who files a complaint alleging a violation by his employer. Whistleblower protections exist under current law. However, these provisions are not widely known, carry a degree of ambiguity, and are virtually unpublicized by the Department of Labor and U.S. Citizenship and Immigration Services.

More explicit language by Congress can be combined with effective action by government agencies to protect the immigration status of whistleblowers. This should not require an employer to pay a salary to an individual simply because he or she filed a complaint that is pending, since that can easily be abused. And there should be discouragement in the law or regulations regarding the filing of frivolous claims. However, making it clear that an H-1B visa holder who files a complaint can stay in the United States in H-1B status (and seek other employment) while a complaint is adjudicated would increase protections for the individuals and the integrity of the H-1B visa process.

Second, a process should be in place for an H-1B visa holder to file for private arbitration, if necessary, to retrieve disputed wages owed. Such a dispute may not rise to the level of a formal complaint or perhaps an individual feels uncomfortable contacting federal authorities over a private wage issue. While government bureaucrats are not universally loved in America, they are loathed in other nations. The right to arbitration of a wage dispute, which could also carry protection of immigration status, would help provide greater employee-employer balance for a group of people concerned with their immigration status in the United States.

Third, increase employment-based green card quotas and eliminate the per country limit for skilled immigrants. The possibility one would need to re-start the process with a new employer can limit the mobility of someone in H-1B status, which would make them less likely to complain. While most employers only want people to work for them who wish to be there, some employers could take advantage of a situation created by Congress not increasing the quotas for employment-based green cards.

Fourth, all H-1B visa holders should receive the key documents relevant to their case and H-1B status. This includes a copy of the labor condition application, which carries wage information and, for example, the I-797 approval notice. USCIS and the Department of Labor should seek to ensure H-1B visa holders are receiving the documentation they are entitled to, as well as information related to protection of immigration status and how to file complaints.

Finally, Congress should avoid enacting measures that would be so restrictive as to encourage U.S. employers to hire skilled foreign nationals abroad rather than in the United States. Two such actions would be to apply “recruitment” and “nondisplacement” attestations to all U.S. employers. There is no evidence of a need to expand the scope or application of these attestations. In the days of flexible job functions and multiple locations such provisions can cause a General Counsel to conclude his or her company may be unlikely to be in compliance if they hire any H-1B professionals. The safer alternative would be to expand outside the United States rather than risk such legal liability.

Current Law Addresses Key Concerns

Current law already addresses the main concerns of critics. Under Section 413 of the American Competitiveness and Workforce Improvement Act (passed in 1998), a company found committing a “willful” violation of the law regulating the proper wages for H-1B visa holders and displacing a U.S. worker is barred for three years from hiring any foreign nationals in the United States and faces up to a $35,000 fine per violation.

The problem is that the solutions proposed by some critics are essentially thinly disguised efforts to prevent employers from obtaining H-1B visas for any skilled foreign nationals, not really an attempt to address abuse. If one were concerned with companies committing fraud, then strict new requirements would not impact businesses that already ignore the current rules but rather would affect those who obey the law.

Labor Certification – Making it Hard for Talented Foreign-Born to Stay in the USA

Many people would find it odd that after a company recruits for a position the federal government may require the employer to recruit again. That is the strange world of labor certification, a process required by law for many skilled foreign nationals to gain employment-based green cards. Given that Indians are the largest recipients of H-1B temporary visas each year, America’s questionable labor certification policy likely affects Indians more than any other group.

When sponsoring an individual for an employment-based green card, the Department of Labor mandates that employers place advertisements to show no U.S. workers are available to fill the jobs, detail recruitment results, and complete much paperwork subject to government review.

Surprisingly, the actual language of the law does not specifically say employers need to place advertisements. This is an invention of the Department of Labor. The law also does not specify that if employers “test” the labor market they must hire anyone “minimally qualified” for the job. These things come from the Department of Labor’s regulations.

Here is what the section of the Immigration and Nationality Act on labor certification states:

Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

In the past, the Department of Labor has admitted its process is paperwork-intensive for both the government and companies. In 2002, when the Labor Department issued a proposed rule to revise the system, its own rule stated, “The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers, SWAs [state workforce agencies] and the Federal Government. It can take up to two years or more to complete the process for applications that are filed under the basic process and do not utilize the more streamlined reduction in recruitment process.”

While since then the Department of Labor has moved to a somewhat different system called PERM (Program Electronic Review Management), the new system is not much of an improvement. While PERM is theoretically faster in the initial stage, since it relies on attestations, the Department of Labor audits a high percentage of the cases. It also can force employers to engage in “supervised recruitment” if they hope to gain a green card for an employee. A chapter in the American Immigration Lawyers Association’s handbook declared, “Understanding PERM has been one of the greatest challenges in recent times in the practice of immigration law.” And PERM was meant to be the Department of Labor’s “streamlined” system.

The United States is making itself less competitive by requiring such a bureaucratic and counterproductive process for employers that wish to keep skilled professionals working for them long-term. “I have personally seen foreign nationals with U.S. masters degrees go to more welcoming countries abroad to settle because the U.S. system is so time consuming and complex,” said Ann Pinchak, a Houston-based attorney with more than 20 years of experience in immigration law.

If America hopes to retain the most talented workers in the world, a good place to start is reforming the Department of Labor’s labor certification policies. The policies do not “protect” American jobs but waste resources, discourage foreign-born professionals and make U.S. companies less competitive in the global economy.