Law Office of Bonnie Stern Wasser
—Bringing People Together—
Industry Focus: High Tech
H-1B Caps and Wages
By Bonnie Stern Wasser, Esq.
© 2007
The following is intended as general information and not legal advice. It is not meant to establish an attorney/client relationship.
H-1B specialty occupation visas for professional workers are available across all industries. However, high tech employers are one of the largest industry users of this visa category. The annual allotment of H-1B visas is a rather paltry 65,000 per year, down from 120,000 a few years ago. The 65,000 "cap", or annual quota, was reached for this fiscal year 2007 before the fiscal year even began on October 1, 2006! Therefore, employers hoping to hire new H-1B workers have been out of luck with limited exceptions. For employees needed for FY 2008 beginning October 1, 2007 employers can begin to file applications on April 1, 2007. Therefore, now is the time to locate and make offers to the best and brightest talent in order to have H-1B applications ready to file on April 1.
Not subject to the H-1B cap (meaning petitions can be filed anytime) are workers or employers in the following categories:
- H-1B workers already in the US in H-1B status seeking to change employers;
- H-1B workers needing extensions of stay;
- H-1B workers with US masters degrees are subject to an additional 20,000 visas, but that cap was also reached this fiscal year. New filings also begin April 1, 2007 for jobs beginning October 1, 2007;
- Workers who will be employed at institutions of higher education or at a related or affiliated nonprofit entity;
- Workers who will be employed at a nonprofit research organization; or
- Workers who will be employed at government research organization.
A second issue important to the high tech industry has to do with wages. The H-1B visa program has very specific wage and hour and benefits, notice and recordkeeping requirements for employers. However, a number of tech organizations that oppose increases in the H-1B cap often argue that the H-1B program is used to depress the wages of US workers. If in fact this is going on, then the US Department of Labor (DOL), which provides oversight of the wage and benefit aspects of the program, has not done enough to enforce its own rules.
In fact, the H-1B regulations specifically require the employer to pay the GREATER of the prevailing wage paid to workers in the occupation of the employer in the geographic region defined by DOL OR the actual wage paid to US workers at the employer's site in the same or similar occupation - whichever rate is HIGHER. So, if the company does not have other US workers performing the same job, the employer has to pay at least the prevailing wage in the area for the occupation. On the other hand, if the prevailing wage is lower than what the employer is paying its US citizens in the same occupation, the employer must pay the immigrant what the US workers receive. In some cases where the employer pays its US workers in the occupations BELOW the prevailing wage, the immigrant worker will earn MORE than the US workers because the prevailing wage will be higher and that rate must be paid. So, to say the H-1B program depresses wages is simply not true. While there have been a few high profile H-1B wage and hour cases over the years dealing with employers who failed to follow the rules, the majority of employers comply with the law.
In addition, the employer must provide notice about the proposed pay to its US workers, including any collective bargaining unit (union). There are complaint provisions. The employer must also document how it determined both the prevailing and the actual wages to arrive at the wage offered the immigrant. Finally, it must keep evidence that the wages stated were indeed paid. All of these documents must be available for public inspection or DOL audit at any time. Consequently, it is advisable that H-1B employers consider retaining counsel to conduct an internal private paperwork audit in case the employer is ever audited by DOL.
For more information about immigration legal services, contact Bonnie Stern Wasser at (206) 282-2279 or bonnie@bswasserlaw.com.
