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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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Extending, Renewing or Changing Employers on your H-1B Visa

A common question we get asked is the process of renewal or extension of the  H-1B Visa and these days with all the lay-offs particularly changing employers on and H-1B visa. So we will attempt to best answers those questions for you.

RENEWAL:

The H-1B is for a period of 3 years which is able to be renewed once giving a maximum period of 6 years.

However following legislation enacted in 2000, extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140 which is the permanent residency or green card application has been filed.

Usually this is not necessary as this should not take that long but does by the H-1B holder some extra time in this case. We recommend you ask your employer to have filed your Green Card Application by this stage.

The difference between H-1B status and getting your visa stamped are often confused. Getting H-1B approval implies that you are authorized to work in the U.S. and getting visa stamped implies that your passport has been authorized to enter the U.S so in essence the ability to travel.

As mention the general H-1B authorized period is three years and the date stamped on your passport would be close to this period.

CHANGE OF EMPLOYER OR EXTENSION:

H-1B extension is the extension of authorization to work in the U.S but is NOT the actual visa. To have the ability to travel across the U.S you need to get your visa stamped against the new extension, this is known as H-1B revalidation.

So if your visa has been extended beyond the 3 year period within the US, this is where you would need to get your visa stamped at an overseas consulate or embassy, if you travel abroad.

If changing employers or extending stay through USCIS, your employer has to prepare a new Form ETA 9035 Labor Condition Application (LCA) and Form I-129. There are filing fees for the I-129 form. ($320 currently)

The full list of H-1B Application costs are here.

If changing employers it also has to proved that you have recent pay stubs (at least 60 days old) and last year W2 forms (if applicable). If you do not have recent pay slips, it may need to be explained to USCIS as to the reasons why this is the case. They do consider leave of absence and long term approved sick leave.

It should be noted that this petition has to be filed BEFORE your last day of employment (and thus your termination date) recorded with USCIS. If this is after, you will be considered out of status and unable to change employers on your current H-1B.

If you are laid-off and USCIS is notified you will considered immediately out of status so as mentioned in other posts, it will be good if this is your circumstance to have your employer to delay notification to USCIS so you can have further time to find a role.

A merger and/or a sale of the company sponsoring your H-1B visa is not necessarily a change to your visa conditions and you may not need to do anything. If however you are performing different duties to what was on your approved Labor Condition Application, then this can be a violation.

USCIS sends Form I-797 Approval Notice to the employer or attorney of record as notification of the decision on the extension request.

Portability allows H-1B visa holders (or H-1B status) to actually begin work for a new H-1B employer as soon as the new employer files this change of employer application. This is an excellent benefit as does not result in many weeks and sometimes months of no work (OR SALARY) while USCIS takes is time to process this. This ability has been since 2001.

In terms of travel, a H-1B holder may re-enter the U.S. with an H-1B visa showing a different employer to join a new employer, but only if the new employer has filed an H-1B application in accordance with the above conditions and timings for you.

I hope this best answers this weird part of the H-1B visa terms of operation and I wish you well in either your;

– renewal of your H-1B Visa
– extension of your H-1B Visa
– change of employer of your H-1B Visa

CJ

SPECIAL EDIT: FIND OUT THE COMPANIES THAT YOU PROBABLY SHOULD NOT APPLY TO THIS YEAR BECAUSE IT WILL BE ALMOST IMPOSSIBLE FOR THEM TO HIRE FOREIGNERS ON H-1B VISAS

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