By BethEl Nager
Law Student Editor
Among the non-immigrant entry visas granted to foreign workers, the H-1B is extremely popular with U.S. employers seeking employees with special skills due to its long duration (up to six years with an extension) and flexibility. To qualify for an H-1B visa, a foreign candidate must hold a bachelor’s degree or equivalent and must have highly specialized knowledge in a field required for employment.
An important condition for the grant of an H-1B visa is that the prospective employer must certify to the U.S. Department of Labor in a Labor Condition Application (LCA) that hiring the foreign worker is necessary because no comparable qualified candidate is available in the United States, and that the employment will not undermine salaries or the position of workers in the United States. In short, H-1B employees must fill an existing labor void rather than displace U.S. workers.
U.S. Citizenship and Immigration Services (USCIS) is tasked with enforcing these conditions through investigation and sanction powers. USCIS may conduct site visits, review documentation such as employment applications, and interview managers and employees to investigate whether an LCA has been filed to circumvent immigration regulations. For over twelve years, USCIS has implemented unannounced site visits to check compliance by employers and H-1B visa holders. These visits include an inspection of wages, work locations, and job tasks. USCIS also investigates allegations of “benching,” which entails an employer not paying an H-1B visa employee while the employee waits for work in violation of visa regulations. Beginning in February 2021, USCIS implemented a new strategy comparing U.S. employees with H-1B employees in businesses that commonly hire foreign workers through this program.
The H-1B program also impacts foreign spouses who wish to work, typically on an H-4 visa. The partners of H-1B visa holders typically experience exorbitant employment wait times because of delayed documentation. Even though the Obama Administration made H-4 visas available, subsequent government action and the pandemic have contributed to extreme delays in recent years. This red tape may result in U.S. companies struggling to acquire foreign workers with needed expertise. USCIS has attempted to address these challenges by reducing the wait time.
Recently, the Labor Department has determined that Facebook Corp. (since renamed Meta Platforms, Inc.) was one of several technology companies that abused the H-1B visa program by solely advertising jobs to international markets, without also offering the same opportunities to U.S. citizens. Jobs advertised only on foreign markets raised suspicions that Facebook was violating federal law by not even inquiring as to whether U.S. workers were eligible for these same positions. As a result, Facebook agreed to a $14 million settlement, the largest of its kind, although still modest relative to the company’s approximately $128 billion net worth. Facebook further agreed to implement an antidiscrimination training and monitoring program.