Spinhan

Q: Why U.S. employers tend to avoid hiring H-1B workers?

A: U.S. employers usually use the H-1B program to hire highly educated foreign professionals.  The program is difficult and burdensome for U.S. employers, because of the following requirements and possibility of significant delays before hiring foreign professionals.

Protect wages and working conditions of U.S. workers:
The program is difficult, because the federal law requires the U.S. employers to attest: (1) to pay H-1B workers the required wage, which is the greater of either the actual wage paid to U.S. workers in a similar position, or typical wage in the region for that type of work; (2) that the employment of H-1B workers will not adversely affect the working conditions of workers similarly employed; (3) that there is no strike or lockout at the worksite; and (4) to notify their U.S. workers, when hiring a foreign professionals.

If the U.S. employers use a higher percentage of H-1B workers, they must meet additional requirements, including documenting recruitment in the U.S, and not laying off U.S. workers to hire a foreign professional.

The purpose of these attestation requirements is to protect U.S. worker’s wages and working conditions, and to prevent foreign professionals from being exploited by U.S. employers.

Qualification of foreign professionals: Using this program is also burdensome for U.S. employers, because they have to demonstrate that a foreign professional will be employed in jobs that require at least a bachelor’s degree or the equivalent in the field of specialty, and the intended employee has the required qualifications.  If the size of a U.S. employer is relatively small, it is highly likely that the employer will be required to submit additional information to justify the employment of a foreign professional, which might cause significant delays in processing, or sometimes denials.

Reasonable costs of return ticket: The employer is also liable for the reasonable costs of return transportation of a foreign worker if the employer dismisses the H-1B worker from the employment before the end of the period of authorized admission.

Processing dates: Unless premium processing fees of $1000 are paid, the program takes almost half a year to process an H-1B application with regular filing fees. If a foreign professional has to obtain visa from the U.S. Department of State prior to the employment with the U.S. employer, additional time will be needed.

Numerical limitations: The federal law regulates an annual numerical cap on the number of foreign professionals who may be issued H-1B visas. Starting from fiscal year 2004, which begins from October 1, 2003 to September 30, 2004, the number is 65,000 for each fiscal year.  If the cap has reached for a fiscal year, the U.S. employers have to wait until next fiscal year before foreign professionals become able to begin working with the employers, unless exceptions apply to them.

Therefore, U.S. employers tend to avoid hiring foreign professionals unless they were unable to find needed skills among U.S. workers.