[ale] OT: H1B: PLEASE DISREGARD EARLIER POSTS

[Joe Steele]

On Thursday, December 30, 2004, George Carless wrote:
>
> On Thu, Dec 30, 2004 at 09:19:47AM -0500, Yu, Jerry wrote:
> > I think Mr. Evans may be right on the point that by law, H1B shouldn't
> > be
> > hired if qualified Americans can be found and hired. If I recall
> > correctly,
> > H1B visa application is approved upon determination that there's no
> > qualified citizen/PR could be found during recruiting process, and
> > denied
>
> This is, again, incorrect.

I think this deserves a little bit of clarification.

First of all, "H1B" refers to paragraph (a)(15)(H)(i)(b) of 8USC1101, which
defines a certain type of nonimmigrant alien.  The definition describes a
person "... who is coming temporarily to the United States to perform
services ... in a specialty occupation described in section 1184(i)(1) of
this title..., who meets the requirements for the occupation specified in
section 1184(i)(2) of this title..., and with respect to whom the Secretary
of Labor determines and certifies to the Attorney General that the intending
employer has filed with the Secretary an application under section
1182(n)(1) of this title."

The "labor condition application" required by 1182(n) is a certification by
the employer that, among other things, he will offer to pay the H-1B at the
prevailing rate or the actual wage level currently being paid, whichever is
higher.

Furthermore, the employer certifies that he "...did not displace and will
not displace a United States worker ... employed by the employer within the
period beginning 90 days before and ending 90 days after the date of filing
of any visa petition supported by the application."

And finally, the employer certifies that he "(1.) has taken good faith steps
to recruit, in the United States using procedures that meet industry-wide
standards and offering compensation that is at least as great as that
required to be offered to H-1B nonimmigrants..., United States workers for
the job for which the nonimmigrant or nonimmigrants is or are sought; and
(2.) has offered the job to any United States worker who applies and is
equally or better qualified for the job for which the nonimmigrant or
nonimmigrants is or are sought."

IANAL, but my reading of this law is that qualified US workers are intended
to have first right of refusal for jobs being filled by H1B applicants.

--Joe

References:

Paragraph (a)(15)(H)(i)(b) of 8USC1101 can be found here:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+8USC1101

Paragraph (i) of Section 1184 (defining "specialty occupation") is here:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+8USC1184

Paragraph (n) of Section 1182 (setting requirements for the "labor condition
application") is here:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+8USC1182