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Changes in USCIS policy
After completing a policy review, the USCIS clarified that individuals who spent more than one year outside of U.S. and did not exhaust their entire six-year term can choose to be re-admitted for the “remainder” of initial six-year period without being subject to the H-1B cap.[32]
After completing a policy review, the USCIS clarified that, "Any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens."[32]
USCIS recently issued a memorandum dated 8 Jan 2010. The memorandum effectively states that there must be a clear "employee employer relationship" between the petitioner (employer) and the beneficiary (prospective visa holder). It simply outlines what the employer must do to be considered in compliance as well as putting forth the documentation requirements to back up the employer's assertion that a valid relationship exists.
The memorandum gives three clear examples of what is considered a valid "employee employer relationship":
- an accountant working on and off-site to work
- a fashion model
- a computer software engineer working off-site
In the case of the software engineer, the petitioner (employer) must agree to do (some of) the following among others:
- Supervise the beneficiary on and off-site
- Maintain such supervision through calls, reports, or visits
- Have a "right" to control the work on a day-to-day basis if such control is required
- Provide tools for the job
- Hire, pay, and have the ability to fire the beneficiary
- Evaluate work products and perform progress/performance reviews
- Claim them for tax purposes
- Provide (some type of) employee benefits
- Use "proprietary information" to perform work
- Produce an end product related to the business
- Have an "ability to" control the manner and means in which the worker accomplishes tasks
It further states that "common law is flexible" in how to weigh these factors. Though this memorandum cites legal cases and provides examples, such a memorandum in itself is not law and future memoranda could change this.
Some argue that this has effectively "killed the job-shop industry."[citation needed] While clear that, as of 2012, it takes longer to reach the H-1B visa numerical cap, it is not clear whether this is a result of simple political pressure to put the program on hold, or a result of the decreased economic growth.[original research?]
[edit]Protections for U.S. workers
[edit]Labor Condition Application
The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of US workers. For every H-1B petition filed with the USCIS, there must be included a Labor Condition Application (LCA) (not to be confused with the labor certification), certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the non-immigrant worker meets or exceeds the "prevailing wage" in the area of employment. ("Immigration law has a number of highly technical terms that may not mean the same thing to the average reader." [33]last updated 2011 March 31, visited 2012 November 5) The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers to break a strike or replace US citizen workers.
While an employer is not required to advertise the position before hiring an H-1B non-immigrant pursuant to the H-1B visa approval, the employer must notify the employee representative about the Labor Condition Application (LCA)—or if there is no such representation, the employer must publish the LCA at the workplace and the employer's office.[34][35] Under the regulations, LCAs are a matter of public record. Corporations hiring H-1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.
[edit]History of the Labor Condition Application form
The LCA must be filed electronically using Form ETA 9035E.[36] Over the years, the complexity of the form increased from one page in 1997[37] to three pages in 2008,[38] to five pages as of August 2012.[39]
[edit]Employer attestations
By signing the LCA, the employer attests that: [40]
- The employer pays H-1B non-immigrants 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, whichever is higher.
- The employment of H-1B non-immigrants does not adversely affect working conditions of workers similarly employed.
- On the date the application is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation in which H-1B non-immigrants will be employed at the place of employment. If such a strike or lockout occurs after this application is submitted, the employer must notify ETA within three days, and the application is not used to support petition filings with INS for H-1B non-immigrants to work in the same occupation at the place of employment until ETA determines the strike or lockout is over.
- A copy of this application has been, or will be, provided to each H-1B non-immigrant employed pursuant to this application, and, as of the application date, notice of this application has been provided to workers employed in the occupation in which H-1B non-immigrants will be employed:
- Notice of this filing has been provided to bargaining representative of workers in the occupation in which H-1B non-immigrants will be employed; or
- There is no such bargaining representative; therefore, a notice of this filing has been posted and was, or will remain, posted for 10 days in at least two conspicuous locations where H-1B non-immigrants will be employed.
The law requires H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location, or the same as the employer pays to similarly situated employees. Other factors, such as age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.
The approval process for these applications are based on employer attestations and documentary evidence submitted. The employer is advised of their liability if they are replacing a US worker.