H-1b Visas, H-1b Dependency Issues & Possible Penalty for Aliens Possessing a Master's Degree.

The H-1b visa program was designed with the intent of attracting some of the world’s brightest minds to the United States to work for a temporary period. Many of the world’s smartest and most skilled workers are able to utilize this employment-based visa and the United States is strengthened by attracting these educated and highly skilled workers. The H-1b visa often times leads to procurement of a Green Card through the PERM processes. If it is true that part of the policy for establishing the H-1B program is to attract the world’s smartest and most skilled workers to our country, why then would the Government allow for loopholes in the law that could create a financial penalty for workers who possess a master’s degree as opposed to a bachelor’s degree?

In an effort to prevent companies from misusing the H-1B program, the Department of Labor and the USCIS has set up a system for discouraging employers from employing an extremely high percentage of H-1b visa holders in relation to the American workers that a company employs. A company that employs a high percentage of H-1b employees may fall into the category of “H-1b dependant.”

H-1b dependant employers must make additional attestations on documents filed with the Department of Labor. Specifically, an H-1B dependent employer must swear that the H-1b worker did not displace any American worker for 90 days before and after the H-1b visa is filed. Additionally, an H-1b dependant employer must attest that it has made good faith efforts to recruit American workers to fill positions in its company. Penalties for violating the attestation requirements can be quite severe.

If a company has a high percentage of H-1b workers, and is would be considered H-1b dependant, the company can avoid the attestation requirements listed above by doing one of two things: 1) paying the H-1b employee $60,000 per year or 2) hiring an alien with at least a master’s degree.

However, the problem that this rule produces is that an H-1b employer could potentially pay the holder of a master’s degree less money than a holder of a bachelor’s degree: thereby creating a master’s degree penalty. Penalizing persons with higher levels of education makes no logical sense insofar as immigration policy is concerned. However, it is potentially true that companies could attract holders of master’s degree for the purpose of paying them less than the employer would have to pay the holder of a bachelor’s degree.

If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters.