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My expertise is in corporate immigration - that is, immigration to the U.S. based on employment. This includes non-immigrant categories such as the H-1B, the L, the E, the O, the TN and the P.
Lately on DU I have seen a lot of posts talking about the dangers of H-1B visas. Almost all the posts have some fallacy about the H-1B visa program that any immigration expert would easily recognize. Thus, rather than answering each and every inaccurate post, I would like to explain a bit about the H-1B program, as well as some of the other employment based non-immigrant visa categories above.
DISCLAIMER: This post does not imply that all companies are ethical and abide by all government rules with regards to these visas, nor is it implying that people should be made to lose their jobs to visa holders.
Firstly, the avenues for legal immigration in the U.S. are few and very restricted. As for employment immigration, the number one requirement is that there must be a U.S. employer that offers a position to a foreign worker. This is true of all categories for employment-based visas. This U.S. employer does not have to be a U.S. corporation; it can also be the subsidiary or branch of a foreign corporation that is based in the U.S.
Secondly, based on the employee's credentials, the job to be performed and the nationality of the employee, there are various visa categories that may or may not fit. The H-1B visa category is a 'specialty occupation' visa. Generally, it requires achievemnt of the U.S. equivalent of a bachelor's degree (or combination of education and experience, as evaluated by U.S. evaluation agencies accredited by USCIS) in a field related to the job occupation to be filled. Contrary to a few postings I've seen, there is NO advertising requirement (in other words, the employer does not need to advertise). The advertisement process, however, is a requirement for the Labor Certification process which is not a visa but is done if a foreign employee is seeking permanent resident (i.e., green card) status in the U.S. However, the Labor Certification is not done immediately (and it cannot be done for certain visa categories such as the L-1B; fr others, such as the E and the O or the L-1A, it is not required at all).
There are very specific rules for the H-1B. (1) is the bachelor's degree issue. (2) is that the job to be performed must be a job that requires at least a bachelor's degree or, in the case of nurses (which have their own H-1C classification) or teachers, it requires further licenses. (3) is that the wage to be paid must be 100% of the prevailing wage paid in the same geographic area. (4) benefits must be offered as they would to any other employee.
As for the wage issue, all places where I have worked use the same survey to determine prevailing wage, which is published by the Department of Labor and has an easily accessible web site (search for DOL and prevailing wage survey) where anyone can see what the prevailing wage is for any job in the U.S. This wage is not arbitrarily set. If the wage says that an experienced software engineer in the Raleigh/Durham area of NC makes $105,000 per year for survey year 2009, then the employer canNOT pay the foreign employee anything less than $105,000. There are no exceptions to this rule. If an employer is unscrupulous and wishes to do otherwise, it is then the employer's fault (not the H visa program or the foreign employee's fault).
Moreover, there are additional requirements for "H-1B dependent employers." These are employers who, based on a formula, have a higher amount of H-1B employees. The H-1B program is not solely for IT personnel; in fact, approximately 2-3000 of these H-1B visas (per annual quota) are usually given to.... guess what! fashion models (they have a special category, H-1B3, which does not require a bachelor's degree). H-1Bs are also for architects, teachers, and professionals in a variety of sectors ranging from the arts to sciences. H-1Bs can be 'dual intent' visas (that means that the person, although classified as a non-immigrant, can petition for a green card). It is possible to change employers as long as the new employer is willing to sponsor the employee (remember that all these visas are employer-dependent; the employee alone cannot change employer on his/her own).
If a H-1B visa holder loses his/her job, the employer is required to pay for repatriation costs (flight home, moving of household goods). There is no grace period to remain in the U.S. and look for other jobs (unlike what some people believe). Status expires upon termination or lay off. Unauthorized stay accrues from that moment. Spouses of H-1B holders are H-4 visa holders and canNOT work legally in the U.S. The maximum duration of the H-1B is 6 years. 7th and 8th year extensions are granted if one is at very specific stages of the permanent residence process.
The L visa is defined as an 'intracompany transfer' visa. It is for those transferring from branch to branch (for instance, from a company's offices in India to its offices in the U.S.). Now, the trick is that the companies do not have to have the same name, as long as they have the same ownership. Therefore, company Y can establish a subsidiary in India and call it company XZ (nothing in common with company Y), then bring in employees from company XZ to company Y in the U.S. Now, the L visa is divided into two subcategories. The L-1B is for 'specialized knowledge' workers. The L-1A visa is for managers and executives. The L-1A is fairly restrictive, in that you must prove the person was a manager or executive in his/her country and this visa category is not usually abused.
The L-1B 'specialized knowledge' is instead possibly the most abused, primarily because there are very few requirements. In addition to corporate relationship, the only other requirements are that the employee must have been working for the foreign counterpart for at least 1 year and that he/she possess 'specialized knowledge' in proprietary tools, technologies, techniques or services provided by the employer. The definition of 'specialized knowledge' has been changed and refined through the years. However, the L-1B has NO requirement that a foreign employee be paid prevailing wage or offered benefits or even be paid in dollars. I worked on hundreds of L-1Bs for employees from India coming to work in the U.S. for a major financial services company ($itibank). Most would get paid in rupees at the same meager wages they made in India. The only difference is that they would get free housing (mostly in waterfront apartments in the Newport-Pavonia area of Jersey City) and experience working in the U.S. It is important to note that, unlike H-1B visa holders, L-1B visa holders are not eligible for green cards and must depart (after their allotted time). No extensions (beyond the 5 year limit) are allowed. There are no education requirements for L-1Bs. However, if an L-1B holder qualifies for the H-1B, he/she can request a change of status with USCIS and be allowed to petition for a green card if he/she is granted the H-1B. Because the L visa is intrinsically linked to company ownership, it is very difficult to change employers (unless the new employer is also owned by the same entity). There are no numerical limits to the L-1B (unlike the H-1B, which is congressionally restricted per fiscal year). The L visa is also much cheaper for an employer to do, as there are fewer fees than with the H-1B.
Spouses of L-1B and L-1A holders are eligible to work legally in the U.S. (but they must file an application for it).
The E visa is for treaty traders/treaty investors. The company in the U.S. must be at least 50% owned by a foreign corporation or citizen of a country that has signed a particular type of treaty of friendship and navigation with the U.S. Moreover the employee must be of the same citizenship and country. For instance, a U.S. employer owned by an Italian company wishes to bring in an Italian employee. There are two subcategories: E-1 and E-2 (treaty trader and treaty investor). Some countries have signed one treaty but not the other; while some have signed both. Thus, the E-1 or E-2 category is determined on the kind of business the employer is. This is a complicated visa that requires a lot of financial documentation and is not abused. It is also costly.
Spouses of E visa holders are eligible to work in the U.S. (but they must file an application for it).
The O visa is for those who possess extraordinary ability in the arts, sciences, business or athletics. Supermodels are eligible for this visa, as are world-class athletes, musicians, scientists, professors, etc. The evidence required to qualify is massive and this is yet another category that does not get abused much.
TN visas are Trade Nafta visas for Canadian and Mexican citizens. They must be coming to work in one of a select list of occupations (which is published) and they must possess at least a bachelor's degree or equivalent (i.e., licenciatura). They are fairly easy to obtain but are not abused (as far as I know) because of the strict requirements (as to the job to be performed and the educational criteria).
The labor certification process is required for H-1B holders whose employers (the employee canNOT request this) wish to pay for and provide them with permanent residence in the U.S. The labor certification is the first stage of three (the I-140 petition and the I-485 application are the next steps). It is at this stage (which does not involve USCIS but the Dept of Labor) that the employer must advertise for the job to be filled.
The famous YouTube video with the lawyers showing employers how to discard qualified job applicants was NOT related to H-1B visa holders, but to the labor certification stage. Indeed, there are legitimate reasons to disqualify job applicants. However, the DOL is very clear that the job ad cannot be tailored for the alien and it must be crafted both generic and specialized enough (a very fine distinction, which is why some companies pay immigration attorneys handsomely for this kind of work).
Again, this is a generic summary of various visa categories. I am not suggesting nor implying that people are losing jobs to visa holder or that everyone follows the law. This is solely informative to dispel a few wrong assertions that have been made about these visas.
Having worked with huge companies such as $itibank and I@M, I have never seen illegal acts. I have seen L-1B visas being preferred, however. As an additional disclaimer, I am not a US citizen. In fact, my father came to work with an E visa (and I with him). Eventually, he became a dual citizen. I now have a green card (it only took 14 years to obtain... LMAO).
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