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Top 10 Reasons Why The H-1B Visa System is Unfair

The politicians and mass media are full of bogus reasons as to why the H-1B Visa and the Immigration System is unfair but to be honest most of those reasons are either completely or partially false or in fact a problem because of them.

I will also do this for other visas like E-3, J-1, F-1, etc. as well as the Permanent Residency/Green Card system and thus US Immigration as a whole.

Let’s take a one of those major reasons as an example;

According to them the “h-1b visa system displaces US workers, causing local unemployment to be higher”

  • the fact is that if it wasn’t for immigrants, companies like Google, eBay, Intel and Paypal may never have begun in more recent times. How many more Americans would be out of work directly and indirectly in related industries?
  • If a person works a lot harder creating a new product, providing a great service so a new client is earned, etc. then that company now will hire more people. Immigrant workers not just today but throughout the entire US history have worked a lot harder their local counterparts because they have too just to survive. (incidentally this is also what ultimately pushes wages hire for US workers as well dispelling that myth as well)
  • A foreign worker with high education in skills in engineering who comes over to be a lead engineer at Apple or work in the Alternative Energy or Bio Tech arena is not displacing a manufacturing worker who lost their job at GM or Chrysler because of their mismanagement. The unfortunate reasons why the average US worker is losing their job is because of terrible American executive management at the companies for decades and corresponding terrible American politicians and their policies in Government. (the politicians and media use foreign workers to deflect blame from where it rightly should be at themselves)

Now let’s get to what you have all been waiting for the Top 10 Reasons why the H-1B visa system is unfair.
This list is not in any particular order as to some degree they are all as bad as each other. (you will see many of this Top 10 list have links as their dedicated posts already about those topics with even more information than the snippet here)

1. Visa Application Cost – Currently if a company chose to apply for the right and was serious about hiring a foreigner they would have to pay about $2,000 in application costs ($1,000 without premium processing) that is not refundable for the application as these days there are always more applications than annual visas available. Then a further $1,000 in extra fees if the petition is accepted. Where does this money go? Well to the US Government of course for vague reasons like Fraud Detection, US Retraining, Homeland Security, etc. So in other words the same old excessive pork barreling for the US Government and politicians.

2. Premium Processing – Ok for the USCIS to process your H-1B visa application “faster” (i.e. 2 week guarantee) and for your registered attorney or company to have phone access to the case officer assessing your application you can pay this extra $1,000 fee. While this doesn’t necessarily “help” your application, all the big companies tend to do it for their applicants to ensure things are correct and of course they get the most visas. In the end it is a fee that benefits only those that can afford to pay it.

3. Visa Lottery – Since the H1B visa has been capped at the 65,000 mark, oversubscription has been a huge issue. Last year they received 130,000 applications on the first day alone on April 1. Even the 20,000 cap for foreigners with US Masters Degrees s being oversubscribed and going to a lottery. The fact that so many companies need the specialized talent but the US Government has set some arbitray limit is not helping the anybody in the US economy.

4. Lawyers – We have consistently said the only people who benefit from this process all the time is the Immigration attorney. For them it doesn’t matter whether a foreigner gets a visa or doesn’t. As long as the system is so convaluted and unnecessarily complex they can just charge more fees. And you wonder why their lobby is so strong in Washington!!

5. Lack of Access by Smaller Companies – For many of the reason I have highlighted above with excessive fees, lawyers, etc. puts the whole process beyond smaller companies, companies in non major centers and many start-ups. If these companies had better access many cities around the country would not be dying and many innovative start-ups could turn into houselhold names and benefit the US as a whole.

6. Visa Quota – As we mentioned there is an arbitray quota of 65,000 H-1B visas each year with an extra 20,000 H-1B visa for foreigners who may have US Masters Degrees. These figures are based on nothing and just random figures to suit nothing but a few politicians in Washington. Given that Bill Gates, richest man in the world who created one of the world’s biggest brand in Microsoft thinks this figure should be more around 500,000 for the US economy, you can see where this may be an issue

7. Lack of Incentive for Permanent Residency/Green Card – An immigrant who comes to the US legally and works hard, pays taxes, etc. it is not the easiest path to Permanent Residency. It is again up to the employer to pay for the application costs and due to the completely overworked and innefficient USCIS and complexity of the process, it can take many years for this to even come through. Some applicants have to stay in their same role foregoing promotions and salary increases, better opportunities at other companies, etc. for 5 or more years just so this process can play out.

8. Tax Burden – An H-1B immigrant has to pay all the taxes a US worker has too; being Federal, State, City if applicable, Social Security, Medicare, etc. However unlike a US worker they have no access to Social Security benefits or Medicare. So they are helping the US worker completely but getting no benefit for themselves.

9. Change of Employer – To change employers, an H-1B applicant’s new company has to pay almost all of the same application costs that we said can be around $3,000. The actual complete approval process itself can take many months. However from the date an H-1B leaves their current company they have only 10 days to get initial approval from Department of Labor  for their new company or they are considered out of status and have to leave the US. Imagine if you were laid off suddenly and you had 10 days to not only find interview but also secure an offer and then submit the approval documents or you would be deported.

10. Hire Dates – So the applications open on April 1 each year and for a few luck people whose applications go really well they may their approval by the start of May. Can they start working then? NO!!! 
The official start date for H-1B visas is October 1 so companies, foreign employees and thus the US Economy as a whole is put on hold for this date to tick over for work to begin

BONUS: Visa Stamping & Travel – I put this in the bonus section as it doesn’t necessarily effect the US Company, US Worker or US Economy but more just the foreign worker. Should this person in their measly 2 weeks leave a year get to be able to go back home and see their families and friends, for the first time they have to plan a visit to the local US consulate just to get their visa stamped. Seems like a simple process but usually takes half to 3/4 of a day to do. That’s a large part of a short vacation spent on US beuracracy!!

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Do I Need A Lawyer for my H1B Visa Process?

I mentioned in an earlier post how cost is one of the first questions most people ask in relation to obtaining their US Visa. Well a close second, and usually a subsequent question to the cost one is whether you need a lawyer/attorney for the process.

This is a very interesting question that I have addressed in part in other posts dealing with costs and procedure but will talk about it specifically here.

The H1B Visa;

Ok the truth is I know of no person that did this successfully without the help of the lawyer. And I know a lot of people on H1B visas from all walks of life! I am not saying that it can’t be done but the odds as they stand are completely stacked against you and really completely in favor of the Immigration Attorneys. They more than likely have a powerful lobby in Washington that likes the process as it is as it means more money and billable hours for them!

The reason why the process is stacked against the foreign applicant is as follows;

– In about 2003, when Congress reduced the cap of H1B visas annually from abotu 190,000 to the current 65,000 (plus 20,000 for US Masters Degree holders), it has meant a major shortage of visas compare to applicants

– There are many large corporations particularly in recent years in the IT and Biomedical industries that desperately need foregin talent due to shortage here (people like Bill Gates have called for 500,000 H1B visas annually) and they because of their budgets, size and need will use lawyers to ensure their candidates have the best chance as well as paying the premium filing fee

– The premium filing fee itself is an optional fee of $1,000 which you can pay so your lawyer has phone contact access to your the case officer assessing your application. This a great expense to pay yourself as an optional fee and I have yet to hear (but I could be wrong) of the Immigration officers talking to anyone other than lawyers

– The H1B process itself is very annoyingly complex with its April 1 opening for annual applications, multi level fee system process, lottery system and other conditions imposed around the whole process making it great for lawyers to exploit. Thus meaning if you don’t have a lawyer you are at a severe disadvantage.

Look I would hope if you are in the H1B process, you have an awesome company whom is paying all the legal costs on your behalf as they really value your employment. However if it is you whom are going to have to foot the bill albeit initially or to pay your company back, then do your research and get recommendations and try and find a fixed retainer if you can.

I do have the names of one immigration law firmwho were fine, professional and friendly during my process but as was all paid for on my behalf by the company have no idea what their fee structure is like. If you want their names drop me a comment or note with your email and I can send their names along.

Other Visas

Each visa presents it own unique challenges but if you are applying for the J1, F1 or M1 visas, I would say you don’t need a lawyer. The H2B visa I would also try an avoid the need for legal representation given you can be sponsored by 3rd party organizations.

If you are applying for the K visas relating to fiancees or spouses, it may be a good idea to get one if you can see there may be complications with your case. I think it’s safe to say in most cases that you would be aware if that circumstance relates to you. This is probably a visa where you definitely want the correct outcome.

The L1 I would assume since your company is multi national and you are doing an intra-company transfer they would have lawyers for the process.

I hope this helps to answer tricky questions you may have….

CJ

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