Although U.S. law does not specify what it considers "specialty occupations," they are defined as a category of specialized knowledge and eligible applicants must have at least a bachelor's degree or higher qualification, or the equivalent work experience.
[6] The H-1B program has been criticized for potentially subsidizing businesses, creating conditions likened to modern indentured servitude, institutionalizing discrimination against older workers, and suppressing wages within the technology sector.
H-1B visas, as defined by United States Code, are those jobs that require a "theoretical and practical application of a body of highly specialized knowledge" and a bachelor's degree or higher or the equivalent experience.
[23] In March 2017, a federal judge in Oregon dismissed a lawsuit challenging the H-1B visa lottery system, granting summary judgment in favor of USCIS, appying Chevron deference.
[31] As such, visa holders may be eligible for receiving Social Security benefits upon retirement should the individual have enough credits and not barred by any totalization agreements with their home country.
Consular officers follow the Foreign Affairs Manual, which states that an approved USCIS petition confirms the basic requirements for H-1B classification have been met.
[citation needed] The law also allowed one-year extensions for H-1B visa holders who were applying for permanent residency and whose petitions had been pending for a long time.
[citation needed] In 2207, Senators Dick Durbin of Illinois and Charles Grassley of Iowa began introducing "The H-1B and L-1 Visa Fraud & Prevention Act" in 2007.
[76] Lofgren's office described it as a measure to "curb outsourcing abuse," citing unfair tech hiring practices by employers including Disney and University of California San Francisco.
[citation needed] On April 2, 2008, Homeland Security Secretary Michael Chertoff announced a 17-month extension to Optional Practical Training for STEM students, as part of the H-1B Cap-Gap Regulations.
[82] The cap-gap extension, introduced alongside this rule, allows STEM OPT workers with pending or approved H-1B petitions to remain in the U.S. while awaiting the start of their H-1B status.
[83][84] On January 8, 2010, USCIS issued a memorandum clarifying that a valid employer-employee relationship must exist between an H-1B employer and visa-holding employee, although the memo was ultimately not implemented.
Examples include a H-1B worker attending a training session, seminar, or conference of short duration, or a temporary moved to a short-term placement of fewer than 30 days.
[99] A memorandum from December 22, 2000, stated because most computer-programming positions required a bachelor's degree, computer programming was considered a specialty occupation that qualified for an H-1B visa.
[120][121] On December 31, 2020, Trump issued a presidential proclamation extending the suspension of entry until March 31, 2021, because they would pose "a risk of displacing and disadvantaging United States workers during the economic recovery following the COVID-19 outbreak.
[125] The New York Times editorial board criticized the program for exploiting both foreign and domestic workers due to loopholes and weak enforcement.
[126] Following these revelations, ten U.S. senators urged the Department of Labor to investigate outsourcing practices at Southern California Edison, which had laid off 500 employees.
[137] Hillary Clinton criticized the program for enabling employers to hire cheaper, more compliant foreign workers but viewed H-1B reform as part of broader immigration policy changes.
[138][139] In 2019, USCIS launched the H-1B Employer Data Hub, providing public access to information on H-1B visa petitions dating back to fiscal year 2009.
[141] USCIS estimated a total of 619,327 approved unique beneficiaries, adjusting for 2,100 visa denials by the State Department and subtracting 32,332 individuals who had obtained lawful permanent residency.
[citation needed] High-tech companies often cite a tech-worker shortage when asking Congress to raise the annual cap on H-1B visas, and have succeeded in getting exemptions passed.
[161] Microsoft chairman Bill Gates testified in 2007 on behalf of the expanded visa program on Capitol Hill: "warning of dangers to the U.S. economy if employers can't import skilled workers to fill job gaps.
[177] Opponents of the H-1B visa program says wage depression in STEM causes young American college graduates to stop pursuing these fields.
[182] According to critics, H-1B holders constitute a modern-day form of high-tech indentured servants,[183] Guest workers on H-1B visas in the IT sector have limited employer mobility compared to U.S.
[184] Although immigration generally requires short- and long-term visitors to disavow any ambition to seek the permanent residency, H-1B visa holders are an important exception because the H-1B is legally acknowledged as a possible step towards a green card under the doctrine of dual intent.
[citation needed] Some workers who come to the U.S. on H-1B visas receive poor, unfair, and illegal treatment by brokers who place them with jobs in the U.S., according to a report published in 2014.
[192] Advocacy groups opposing changes to H-1B policies launched public awareness campaigns, including posters in the San Francisco Bay Area’s Rapid Tansit system.
[197] The top-10 H-1B employers in 2014 such as Tata Consultancy, Cognizant, Infosys, Wipro, Accenture, HCL America, and IBM all used the program to ship jobs offshore.
[citation needed] Computerworld and The New York Times have reported on the inordinate share of H-1B visas received by firms that specialize in offshore outsourcing,[203] the subsequent inability of employers to hire foreign professionals with legitimate technical and language skill combinations,[204] and the replacement of American professionals already performing their job functions and being coerced to train their foreign replacements.
In October 2014, Walt Disney World laid off 250 IT workers, some of whose final assigned task for the company was to train their replacements who'd been hired on H-1B visas.