I’m sympathetic to the idea that we should have a generic immigration mechanism for skilled workers. But we don’t have that. Congress hasn’t created one because the American people won’t support one. (Or at least, the parties that want such a thing aren’t willing to spend political capital on it so long as they can kick the can down the road by abusing the current system).
No it wasn't (as your own link clearly states), the H-1 was created in the 1950s, but the the H-1B was created in the 1990 INA, along with statutory dual intent for the H-1 category, and along with the creation of the O-1.
The AC21 indefinite extensions were added because the per-country backlogs were not anticipated back when the program was created. But it has always, from the very beginning, built a path to permanent residence in via EB2, EB3 and the dual intent provision.
Edit: The person replying to me about the H1B not being dual intent from the beginning is wrong. I have receipts. The H1B was introduced in the Immigration Act of 1990.
https://www.congress.gov/bill/101st-congress/senate-bill/358...
> `(h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien's most recent departure from the United States.'.
Edit to respond to the second reply: The H-1B is dual intent. I did not make any claims about a visa category that no longer exists. Besides, the argument about whether the H-1B is an update or a new category doesn't matter -- it is clear that Congress intended for the H-1B, as created (or updated if you will) in 1990, to be a path to permanent residence. The assertion that it was never intended that way is ahistorical.
Further edit: It sounds like rayiner's dad came in on an older H-1 which indeed didn't have the dual intent provision, not an H-1B which does. The details matter here!
Further, further edit:
> The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent.
I literally pointed to the provision of the 1990 Act which does not require non-immigrant intent for people in H and L statuses. This is what Congress intended.
Of course the H-1B isn't an immigrant visa. It is a dual intent visa, in that it preserves the option value of not having to become a green card holder (and thus pay US taxes worldwide if you decide to leave later, etc.) So someone on an H-1B can choose to become a permanent resident, but doesn't have to become one.
I'm sympathetic to the argument that people should have to decide within a few years either to leave or to stay permanently, but for that the green card backlogs need to be eliminated by statute.
The statute doesn’t say anything about “dual intent.” That’s an administrative fiction. Under the actual law, the H-1B is a “nonimmigrant” visa status for temporary workers.
The status is defined in Section 1101(a)(15), which describes various “classes of nonimmigrant aliens.” See: https://www.law.cornell.edu/uscode/text/8/1101
In that same provision, subsection (H)(1)(b) defines the status as a worker “who is coming temporarily to the United States to perform services” in a “speciality occupation.”
The provision you quote doesn’t create some concept of “dual intent.” It simply says that someone shall not be presumed to have immigrant intent just because they file an adjustment of status petition. Why would that even matter? Because H-1B still requires nonimmigrant intent!
If Congress had designed H-1B to be a pathway to permanent residency, it would say that in the statute. Instead what happened is that for 40 years the executive branch abused the H-1 program to turn a temporary immigration visa into a de facto permanent immigration system. Congress didn’t want to blow up the status quo, but also couldn’t get the vote to create a real system for permanent immigration of skilled workers. The 1990 INA doesn’t even use the words “dual intent” or anything like it. Congress did the minimum it needed to address the situation where State Department was barring H-1 holders who has filed an immigration petition from re-entering, because that’s all they could get the votes for.
V, L and H-1 (including H-1b, but excluding H-1b1) nonimmigrant visas are explicitly, by statute, excluded from the rule requiring nonimmigrant visa holders to lack immigrant intent; Immigration and Nationality Act Sec. 214(b), as amended, codified at US Code Title 8, Sec. 1184(b).
"Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent. Its true that there are some visa categories where "dual intent" is applied adminstratively rather than from a clear statutory rule, but V, L, and H-1 (except H-1b1) visas have explicit statutory allowance for dual intent.
> If Congress had designed H-1B to be a pathway to permanent residency, it would say that in the statute.
But...it does say that in the statute.
> Instead what happened is that for 40 years the executive branch abused the H-1 program to turn a temporary immigration visa into a de facto permanent immigration system.
Whether or not H-1 may have been abused that way between 1980 and 1990 (the first 10 years of your "40 year period") [See EDIT below], the exemption of H-1 and L visas from the no-immigration-intent requirement has been express in statute since the Immigration Act of 1990, so for the last 30 years the behavior you complain about has been strictly as directed by statute.
References:
Summary: http://www.americanlaw.com/dintent.html
Current codification and history: https://www.law.cornell.edu/uscode/text/8/1184 [history of amendments, including text added by the 1990 amendment at issue, by clicking "Notes"]
[EDIT: The H-1B can't have been abused between 1980 and 1990, while I checked when the H-1B was added to the exception from the no-immigration-intent rule, I didn't check when the visa category itself as added, which was at the same time in the INA of 1990. So, no, it was never abused as a route to immigration, it has always explicitly allowed that use in the statute. Conceivably, the unsplit H-1 could have been abused between 1980 and 1990, though.]
> (b) Presumption of status; written waiver Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 1101(a)(15) of this title, and other than a nonimmigrant described in any provision of section 1101(a)(15)(H)(i) of this title except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 1101(a)(15) of this title.
This creates a rebuttable presumption that an alien has immigrant intent, and excludes H-1B holders from that presumption.
But the H-1B is still a non-immigrant visa. 8 USC 1101(a)(15) clearly distinguishes "immigrants" from "nonimmigrant aliens." An H-1B is classified as a "nonimmigrant alien." Subsection (H)(1)(b) still applies to those who will work "temporarily" in the U.S. H-1Bs are still governed by 8 USC 1184 ("admission of nonimmigrants") and not 8 USC 1181 ("admission of immigrants").
> "Dual intent" isn't an administrative fiction, its a term of art for the nonimmigrant visa categories excluded from the generally applicable requirement for having (and demonstrating) the absence of immigrant intent.
It's a term of art that refers to an administrative fiction. That fiction allows a visa that is by its terms a nonimmigrant visa for temporary workers to be treated in practice as the first step in the path to permanent immigration. The 1990 INA doesn't change that in substance--it merely excludes H-1Bs from a presumption to avoid blowing up the fiction. This is the result of H-1B being a statutory kludge in response to the executive branch's longstanding abuse of the H-1 visa created in the 1952 INA.
Other countries have real skilled immigrants visas that are designed to be such. They work very differently, and make much more sense because they were designed for that purpose. E.g. https://www.canada.ca/en/immigration-refugees-citizenship/se...
The US Code Title 8, Sec. 1184(b) has nothing to do with the "dual intent" thing. What happens there is that people on visas like B2 are _presumed_ to be immigrants, and need to actually argue that they are not in front of consular officers in the embassy and the immigration officers at the border. The holders of V, L and H visas are exempt from this, and they are presumed non-immigrant by default. However, contrary to what you say here, L and H visa holders are still required to lack immigration intent.
The dual intent rule stems from completely different piece o US code, see the section 205 of Immigration Act of 1990:
> (h) The fact that an alien is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i) or (L) of section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 248 to a classification as such a nonimmigrant before the alien's most recent departure from the United States.'.
This is the source of the dual intent doctrine. Note what it says: it says that application for permanent residency shall not constitute evidence of an intention to abandon a foreign residence. The reason it says so is because prior to that, such application has in fact been used by Department of State to presume immigrant intent on behalf of H1 visa holders, and to deny them entry. This is the "legal fiction" rayiner is talking about: H1B visa holders are still required to have no immigration intent, and while the US Code Title 8, Sec. 1184(b) frees them from the presumption that they do have one and requirement to prove that they do not have it, the dual intent doctrine was still necessary in order to bar government agencies from concluding that they intend to immigrate based on their application explicitly saying that they intend to immigrate.
> But...it does say that in the statute.
No, H1B is still a non-immigrant visa, see section 1101(a)(15) which defines the non-immigrant visas.
> the exemption of H-1 and L visas from the no-immigration-intent requirement has been express in statute since the Immigration Act of 1990, so for the last 30 years the behavior you complain about has been strictly as directed by statute.
Right, the amended statute doesn't make it actually illegal, but still the whole procedure is based on legal fiction of not concluding immigrant intent where there obviously is one.
Rayiner did not reference a “legal fiction” based in statute, he referenced an “administrative fiction” that he specifically claimed was unsupported by the statute and a product of abuse by the executive over the last 40 years.
This is clearly false. It is expressly the statutory policy directed by Congress.
Yes, that's what makes the fiction legal. However, the "fiction" part is about prohibiting government agencies from concluding immigration intent based on the application for permanent residency which clearly does show immigration intent. The H1B holders are still technically required to not have immigration intent, and it still technically is a non-immigrant visa, but it's all a fiction in practice.
The H-1B is, under the statute, one of the subcategories within the H-1, and is covered by the same rules except to the extent they are explicitly distinguished. The H-1B1, another subcategory, is explicitly not included in the carve-out of the H-1 from the rule generally prohibiting immigration intent for nonimmigrant visas, which, so the H-1B1 is not, while other H-1s including the H-1B are, dual-intent visas.)
H-1 nonimmigrant visas are the set of visas governed by 8 USC Sec. 1101(a)(15)(h)(i), which included the H-1A [now defunct, formerly Sec 1101(a)(15)(H)(i)(a)], and includes the H-1B [Sec 1101(a)(15)(H)(i)(b)], the H-1B1 [Sec 1101(a)(15)(H)(i)(b1)], and the H-1C [Sec 1101(a)(15)(H)(i)(c)].
The relationship is not the same as ID 1030 to ID 103.
“Dual intent” is the “administrative fiat” I was talking about. Both the 1952 and 1990 INA define an H-1 worker as an alien “who is coming temporarily to the United States to perform services.” Non-immigrant intent is a prerequisite for the category. Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa. However, the State Department didn’t recognize dual intent. When an H1 visa holder filed an immigration petition, the State Department treated that as signaling intent to immigrate, in violation of the H1 terms. When the visa holder travelled, they risked not being allowed back in the country, causing significant hardship.
With the INS having backed Congress into a corner, the 1990 INA included a narrow solution to eliminate the specific hardship and maintain the status quo. But it didn’t change the fundamental nature of the H1 visa as a temporary immigration visa. It’s still a temporary non-immigrant visa in the statute, as distinguished from immigrant visas which are also in the statute. The committee’s legislative history for the 1990 INA makes clear that Congress was just kicking the can down the road and alleviating that specific hardship without reconceptualizing H-1B as an immigrant visa:
> The difficulties encountered by those seeking temporary admission who have also expressed a desire to immigrate at some time in the future have caused severe personal hardship as well as inhibited frequent travel to the United States for business purposes. This has been particularly onerous for the beneficiaries of H and L visas. The Committee [on the Judiciary] sees no useful purpose in denying temporary entry to the United States for business purposes because of an inability to show that a residence abroad will not be abandoned. Such presumption of immigrant intent in particular circumstances creates purposeless, but often insurmountable, barriers for the prospective employee and the employer. For all categories of nonimmigrant visas (including the H and L), the bill provides that the filing of an immigrant petition cannot be a factor in determining whether an alien intends to abandon a foreign residence. The Committee notes, however, that the consular officers may rely on other evidence indicating the possibility of overstaying a visa, such as records of past visits to the United States.
If the H1-B was “meant as a path to permanent residence” the whole “dual intent” thing would be meaningless. The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent. It’s a kludge to deal with the fact that Congress can’t actually muster the votes to create a real skilled immigration system.
Except that while the term "dual intent" is a term of art which doesn't appear in the statute, the exception from the rule requiring no immigration intent for non-immigrant visas for visas in the H-1 category (from which exception the H-1B1 is now also excepted, putting it back into the no-immigration-intent category) was also part of the 1990 INA that created the H-1B. While there are categories where you might argue dual intent exists by administrative fiat rather than statute (IIRC, that's the practice with P nonimmigrant visas), its absolutely not the case with V, H-1 (except H-1B1), and L visas, which are explicitly statutorily excluded from the no-immigration-intent rule.
> Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa.
Possibly true between 1952 and 1990, but since 1990 the H-1 has been a visa which explicitly, under statute law allows for immigration intent. To the extent that there was an administrative usurpation involved, it hasn't been an issue since the middle of the George H. W. Bush Administration, and, moreover, its never been an issue for the H-1B, which was created at the same time as the explicit statutory dual intent rule.
As broken as the process is, the DOJ and commenters here clutching their pearls in the direction of excluding would-be permanent residents, by (for example) making false claims about how H1B was never intended to provide option value, are doing a xenophobia.
The H-1 and H-1B system was the result of a political compromise. Americans didn’t want to create a new flow of skilled immigrants. So what Congress created in 1952 was a program for skilled nonimmigrant temporary workers. It came to be used, by executive fiat, as a permanent immigration system. And in 1990, Congress papered over it a bit. But if you read the 1990 statute, it still says it’s for “nonimmigrant” “temporary” workers.
The H-1B was never intended to give workers the “option” of either staying permanently or going back home. You seem to be confused about what “dual intent” means. It’s not an option (disjunctive). It doesn’t mean you can choose to be a temporary nonimmigrant worker, or an immigrant who intends to seek permanent residency. It’s a conjunctive. It means that an immigrant has both the intention to not immigrate permanently, and the intention to immigrate permanently, at the same time. Why do you need both? Why does the “dual intent” provision of the law say that filing a permanent residency petition shall not create a presumption that the person intends to immigrate? Isn’t that a ridiculous thing to say? Obviously someone who files a residency petition intends to immigrate! The reason you need all of that logical contortion and hoop jumping is because the H-1B is still intended for nonimmigrant temporary workers.
It’s very simple. Why does the law require Facebook to advertise a job to US workers when it files a PERM certification? There is already an H-1B worker holding that job! If the H-1B visa is intended to give that person the “option” of permanent residency, why does Facebook have to try and find someone else for the job? And if Facebook actually advertised for the job properly and found an American worker, the H-1B worker would then not get permanent residency and have to go home. If the system intends to give the H-1B worker the “option” to be an immigrant, why would it be designed that way?
What the DOJ is doing is enforcing the original design of the immigration law. Part of that compromise was that temporary H-1B workers would only be allowed to get permanent residency if the employer can certify that it has looked and can’t find an American to do the job instead. The process isn’t supposed to be a formality where Facebook ensures that the H-1B worker gets to keep the job so he or she can get permanent residency.
> In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each. These U.S. workers were denied an opportunity to be considered for the jobs Facebook sought to channel to temporary visa holders, according to the lawsuit.
In practice, what happens is that an H-1B worker is working for Facebook and wants to obtain permanent residency. To do that, Facebook files a PERM labor certification, which requires it to advertise the position to Americans. But Facebook doesn't want to hire someone else to fill that position--it wants the H-1B worker to continue doing the job they're already doing.
If you think of H-1B as being for people who wanted to seek permanent residency all along, this makes little sense. Why require Facebook to advertise a job someone is already doing to other people just to sponsor that person's permanent residency? After all, this person may have been in the U.S. already for years, and is surely counting on being allowed to keep his or her job and stay in the country.
To make sense of this bizarre system, you have to realize that H-1B was not designed for people who intended to immigrate all along. It was designed to satisfy the demand for temporary workers with people who will mostly go home afterwards. The PERM advertising requirement exists to ensure that there really is no American who can do the job instead.
Assuming for the sake of argument that Facebook does face a shortage of skilled engineers, what it faces is a structural shortage. To deal with that structural shortage, it needs immigrants who intend to work in the U.S. permanently. But we don't have a good vehicle for skilled immigrants to say off the bat "I want to come to the U.S. to work, and I intend to stay in the U.S. permanently." H-1B wasn't designed for that. It was designed to fill temporary shortages.
When it comes to "fixing" the H-1B system, you can't overlook the underlying political compromise. Americans don't support creating a permanent flow of skilled immigrants. (At least, not without concessions in other areas, such as curbing illegal immigration.) It seems obvious to "fix" H-1B by just getting rid of things like the PERM advertising requirement. But if you do that, you're subverting the political compromise that led to H-1B in the first place.
It has not.
> It has not.
The H-1B has been. The broader H-1 has not (but has been for 30 years, just as long as the H-1B has existed, other than H-1B1, which is not.)
Specialized, yes, but it isn't supposed to be for completely unique skills. If someone is one of the top 100,000 software engineers in the world, that is a specialized skill set. And it makes sense for our country to encourage those people to immigrate.
That’s a decision for Congress to make and it hasn’t done that. What it has created is a temporary immigration system for skilled workers. The skills don’t have to be unique, but employers must prove that they can’t find workers with that skill set domestically at prevailing wage rates. And that it seems absurd for places like Facebook to say that when they reject so many applications from talented developers.
It isn't absurd at all. Facebook is one of the companies doing this the right way. Facebook interviews H1-B candidates in exactly the same way it interviews American citizens, and they pay the same to H1-Bs and American citizens in the same role. When they reject an American candidate, it's because they don't think that candidate is sufficiently skilled, not because they want to hire a foreigner with the same skills for cheaper.
Stop the fucking bullshit goddammit.
Whether tech interviews should be algorithmic or not is beside the point. But they have a very well-defined process. So every rejection and acceptance is probably very well documented.
You can't make up for that by just offering higher wages. Maybe a few top companies would be able to manage it, but only by poaching all the engineers from other companies. Ultimately, the industry will move elsewhere if US companies can't hire foreign engineers. The US only supplies a fraction of the world's software engineers. There's no inherent reason why the world's tech sector has to be so concentrated in the US.
That's nonsense. FB pays upwards of $200K per year to fresh CS graduates. Compare that to $60K made by a chemical engg graduate. If there were plenty of talented developers why are they paying such astronomical salaries?
Because Facebook (and Google, for that matter) discovered a money hose that is called online advertising, so they can be more liberal with the money they dole out. Also, SV tends to be expensive.
The amount of money your are paid does not necessarily mean you are the best and brightest, as much the HN/software types like to believe.
They are more generous because they have more money? Preposterous. That's not how businesses work. Businesses pay the lowest possible salaries regardless of how much money they make. If they are paying high salaries that's because that's what it takes to hire the top talent. The laws of supply and demand come into play here, not generosity.
I think that US should have an option to give residency to top professionals, but H1B visa hasn’t been designed to allow that, and it is now used for that through hacks, legal fictions and tacit agreements.
Also, the proportion of the total population that's capable of getting a job at FB is quite small. Within FB the people are largely interchangeable, precisely because of that high hiring bar. Everyone who's hired is smart, so they can all do everything (in theory).
The problem at the core is the law itself. Why don't we instead just auction off visas to improve efficiency?
The areas with lower cost and wages can't compete attracting local talent, but auctions would make it even harder for them to attract foreign talent as well. It's a losing proposition for pretty much everyone.
It effectively says you can't hire a better person from abroad if there is a person who is good-enough domestically.
(I'm only saying what the law says, not what is best for Facebook, the USA, or even what is morally right)
Have you checked out FB salaries? They pay upwards of $200K for a fresh CS graduate. Compare that to a mechanical or chemical engineering graduate that makes $60K at best. You really think they would pay 3x if the skills aren't rare?
SWE is a specialization and job descriptions typically ask for things like experience dealing with high QPS distributed systems which is a very specific skillset.
Besides, the idea of trying to segregate workers like this is bogus anyway. Fuck the police state.