FAQSabouttheH1BProgram

Oct 5 2009: not sure if this article is bloggable. What to do about links. New wiki ?

Sept 14 2009: created

Oct 2 2009: See latest H1B news on Digg.

What is the H1B Program ?

A good, no-nonsense description of the often-bewildering H1B program at Wisegeek, with some small clarifications and edits. Note that the description is cast from the H1B employer perspective.

H1B is a temporary non-immigrant status in the United States of America (USA) that is applied for by a sponsoring employer. It is intended for use by aliens who are employed temporarily [ usually 6 years ] in the USA in a specialty occupation. The classification "special occupation" means that the candidates have a Bachelor's degree or equivalent in an area of specialized knowledge. Fields include IT, [c]omputing, accounting, finance, banking, advertising, marketing, PR, Sales, Recruiting, Engineering, Teaching, HealthCare, Legal, Law, Networking, Telecoms, Business, Management and Hospitality. As of 2009, only 65,000 workers are allowed to be working under H1B status at one time. [ actually, the limit is 65,000 H1B visas granted per year ]

Th[e] maximum period for H1B status is six years before the alien must resume living in another location. After one year of residing elsewhere, they may return to the USA and apply for a new period of H1B status. The one exemption to this rule is for those working on special Defense Department projects who may remain for ten years. An H1B acceptance entitles the worker's spouse and children under 21 to live in the USA on an H4 visa. The H4 visa does not allow the children or spouse to work unless they find a sponsoring employer and apply for H1B status independently.

In order to apply for H1B status, the alien must have a sponsoring USA employer. An alien can not under any circumstances apply for H1B status on their own [ sponsors are usually H1B agencies, not American corporations ]. It requires the employer to file extensive paperwork and pay fees, so a potential employee often must be a highly desirable [ read inexpensive ] candidate for the sponsoring firm.

The first step an employer must take to apply for H1B status is to file a Labor Conditions Application (LCA) Form ETA 9035 with the Department of Labor. This is in online form and must be posted 30 days prior to the start of potential employment. On this form, the employer must attest to fair payment and working conditions for the alien. H1B workers must be paid the average general wage for persons in their position or the actual wage paid to similar employees within the firm [ agencies bill out at about 40-60% of American rates, most H1Bs holders get about $6/hr hour plus some expense reimbursement ]. After the LCA is certified, the employer must than file Form I-129 along with the LCA and a fee of $130 US Dollars (USD) to United States Citizenship and Immigration Services (USCIS).

Notice the definition of "specialty occupations" includes pretty much everything that American professionals do for a living. Get the picture ?

Also note that there is no mention of searching for Americans to fill the "specialty occupations" - the entire H1B program was predicated on a mythical lack of specialized skills critical the future of America. So where are the missing skills ?

According to the definition above, the existence of unemployed Americans workers with the same skills doesn't factor into the in the H1B process, which is the reason I like the definition, at least it's honest ... well, reasonably honest, certainly more honest than 99% of the H1B "fudge FAQS" on the web.

OK, You've Told Me About H1B Visas, Now What About The H1B Program ?

Ahhh, you caught me trying to deceive you ! You noticed that the answer given evades the question "What is the H1B Program?".

Actually, this debating tactic is typical of H1B defenders and lobbyists supporting the program. They want to talk about the H1B visa, not the H1B program. By emphasizing the people holding visas, H1B supporters can cast opponents as xenophobic racist losers who hate everybody who doesn't look like them and who don't deserve to have a job anyway because H1Bs are so much smarter than Americans. If you doubt me, check out some of the comments in the links below - you find plenty of examples. No wretched refuse or huddled masses yearning to breathe free among this lot. Meet your new masters, America.

In fact, the H1B visa holder is probably the least important and certainly the most passive and exploited part of the whole H1B process. The cornerstone of the program is the close relationship between large American corporations and large H1B employment agencies

Generally speaking, American corporations do not employ H1Bs; they employ H1B agencies who employ foreign workers almost exclusively. H1B employment agencies rarely employ Americans, although as the most "H1B dependent" segment of the program, it's good PR to have a few token Americans around.

The entire H1B operation within an American corporation is handled at 'arms distance', providing both a cheap source of labor and 'plausible deniability' about abuses of H1B employees. Most large American corporation deal with only a single large H1B agency.

The following diagram shows the basic workiflow for the H1B workers program.

Note that diagram shows the H1B Agency submitting an H1B request. In principle ( and in propaganda ), this step is performed individually by the prospective H1B Visa Holder, but in practice it rarely happens. The process is fairly complex and expensive, few individuals go through it without the prospect of immediate employment. In effect, the H1B Agency controls the entire downstream process.

The different steps of the H1B process can take place more or less independently of a specific LCA or even of a perceived skill shortage of American job skills. Routine and long practice have greased the wheels of IT job destruction to a peak of efficiency. The entire process from order to "delivery" can consume less than two weeks.

Obviously, the H1B Way is much quicker, easier and cheaper than the old fashioned, "free market" way of hiring employees. The H1B agency replaces the inefficient and expensive mechanisms of recruiting and hiring Americans with an invisible market trading in jobs earmarked for inexpensive and readily available foreign workers. Over time, these large agencies have effectively become the job market - all with the blessing of and under the protection of American law and the American government.

Not shown in the diagram is the large, well-funded and very generous lobbying and legal apparatus supporting the H1B industry on the "home front"; that is Washington DC. Of course, this is the most critical part of the H1B industry, without which none of the rest of it would exist.

Never forget that there's PILE of money behind the H1B program, at least $25 billion a year and perhaps a multiple of 25 billion ( disinformation is rife and reliable statistics are scarce ). According to H1B.info, one lobby group has spent over $100 million on "business strategies" to promote the program to Congress and the American public.

Can Unemployed Americans Participate in the H1B Program ?

It's interesting that Americans are not expressly forbidden from applying for H1B visas ... hmmm, does that suggest a way for an American to get an IT job in America.

Would obtaining an H1B visa give unemployed Americans the opportunity to work in America ? Would American citizens with H1B visas possess a sort of a first-class citizenship, that is a citizenship with 'all the trimmings', such as a job ? It's worth considering.

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