\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 31 Petitions for Temporary Workers (H Classifications). \ 31.1 Background.
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[Section (b) amended 10/6/2010; AD10-48; PM-602-0009]
The present nonimmigrant temporary worker categories have changed significantly, becoming more restrictive in some ways and more generous in others, in several stages since 1986. Current law provides for the admission of several specific categories of temporary workers (H nonimmigrant categories, as well as L, O and P categories discussed in other chapters of this manual):
H-1B classification, created by Public Law 101-238 (1989) (and the Immigration Nursing Relief Act which also created the now defunct H1-A nurse classification) and modified by Public Law 101-649 (1990) is reserved for aliens employed in “specialty occupations”, defined as in section 214(i) and for fashion models of “distinguished merit and ability”;
H-1C classification, created by Public Law 106-95 (1999), is reserved for registered nurses employed in specifically designated nursing shortage areas;
H-2A classification, created by Public Law 99-603 (1986), is reserved for temporary or seasonal agricultural workers;
H-2B classification, created by Public Law 99-603 (1986), is reserved for other temporary workers;
H-3 classification is reserved for “industrial trainees” who will not primarily be engaged in productive labor.
Each of these categories is precisely defined in section 101(a)(15)(H) of the Act and the petition requirements for each are set out in
8 CFR 214.2(h)
The Immigration Act of 1952 established a new nonimmigrant class of temporary workers. In these provisions, Congress sought to grant the Attorney General sufficient authority to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production. The provisions also enabled foreign trainees to acqui
re the knowledge of American industrial, agricultural, and business methods. In 1970, Congress eliminated the requirement that an alien of distinguished merit and ability must be coming to a temporary position. However, both the petitioner and the beneficiary must intend that the employment be for a temporary period of time. Also, in that year Congress added another new immigrant category, the L-1, intracompany transferee.
Prior to 1989, there were three H nonimmigrant worker classifications. The H-1 category included all “persons of distinguished merit and ability” which was generously interpreted to include all persons engaged in occupations which required a bachelor’s degree or equivalent. Also included were registered nurses, athletes, artists and entertainers. There was no maximum time limit on the total period of stay or number of extensions which could be approved for an H-1, although in practice an H-1 requesting an e
xtension beyond five years was generally denied as an “intending immigrant.” There was no limit on the number of H-1 aliens who could be admitted to the United States on an annual basis, nor was there any labor market test required. Among the professions, only medical doctors, other than those entering to perform teaching or research, were precluded from the H-1 classification.
In 1986, Pub. L 99-603 created a separate H-2A category for temporary/seasonal agricultural workers. Other temporary workers were redesignated as H-2B.
In 1989, Pub. L. 101-238 created a separate category (H-1A) for registered nurses. This Act also redesignated the existing H-1 category as H1-B. The H-1A category was permitted to sunset on September 1, 1995, with some nurses granted extensions in the category through September 30, 1997. On November 12, 1999, the category was replaced by the present, more restrictive, H-1C category created by Pub. L. 106-95.
In 1990, athletes and entertainers, as well as prominent persons in business, science and education were separated into the new O and P categories as a result of Pub. L 101-649, and the definition of H-1B changed from an alien of “distinguished merit and ability” to one coming to perform “services in a specialty occupation.” In addition, numerical limitations on new admissions of H-1B, H-2A and H-2B nonimmigrants were imposed for the first time. Further, the new law imposed a “labor condition application” p
rovision that required the employer to pay any H-1B worker the higher of the actual or prevailing wage for the occupation in the local area of employment. The requirement that an alien have a residence in a foreign country which he has no intention of abandoning was also removed from the H-1 and L nonimmigrant classifications; however, limits were imposed on the amount of time an alien could remain in H-1B or P status. The H-2 and H-3 nonimmigrant classifications retained the foreign residence requirement,
and the new O, P, and Q nonimmigrant classifications also required that the alien have a residence in a foreign country which he or she has no intention of abandoning.
In 1991, the Miscellaneous and Technical Immigration and Naturalization Amendments further modified the H-1B definition by including fashion models in the category.
In 1998, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) mandated that most H-1B petitioners pay an additional fee (originally $500, later raised to $1,000) which is designated for the funding of training programs for American workers.
In 2000, three significant pieces of legislation affecting H nonimmigrants were enacted. On October 17, 2000, the President approved enactment of The American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Public Law 106-313. On the same date, the President also approved enactment of Public Law 106-311, an untitled bill to increase the fee for certain H-1B petitions. Finally, on October 30, 2000, the President approved enactment of Public Law 106-396, the Visa Waiver Permanent Program Ac
t (Visa Waiver Act). These amendments made the following changes:
Public Law 106-313:
Increased the numerical limitation on the H-1B nonimmigrant classification to 195,000 for fiscal year 2001 through fiscal year 2003;
Allowed for the continued H-1B employment of certain H-1B nonimmigrant aliens who change H-1B employers;
Exempted certain H-1B nonimmigrants from the annual numerical limitation;
Allowed certain aliens who have applied for adjustment of status to change employers under certain conditions;
Allowed INS (now USCIS) to grant an extension of stay to H-1B nonimmigrant aliens who are the beneficiaries of employment-based petitions under certain circumstances;
Modified the method of counting H-1B nonimmigrant aliens;
Provided that certain H-1B petitions that are revoked because of fraud or willful misrepresentation shall be subtracted from the numerical count for the year in which the petition was revoked;
Public Law 106-311:
Increased the additional filing fee for certain H-1B petitions to $1,000, with some exceptions;
Public Law 106-396:
Amended section 214 of the Act to address whether an amended petition is required of an H-1B petitioner when the petitioner undergoes corporate restructuring.
On November 2, 2002, President Bush signed into law the Twenty-First Century Department of Justice Appropriations Authorization Act (21
Century DOJ Appropriations Act). One section of the new law amends § 106(a) of the American Competitiveness in the Twenty-first Century Act (AC21) by making the following change:
Public Law 107-273:
Removes the six-year limitation on H-1B status for certain aliens on whose behalf an alien labor certification or employment-based (EB) immigrant petition has been pending for 365 days or more.
On December 8, 2004, President George W. Bush signed the Omnibus Appropriations Act of FY 2005 (also known as the H-1B Visa Reform Act) into law. This act:
- Reinstated and increased an additional filing fee to $1,500 for certain H-1B petitions filed by petitioners with more than 25 employees in the United States, with some exceptions. This is known as the ACWIA (American Competitiveness and Workforce Improvement Act of 1998) fee.
- Set the additional fee at $750 for certain H-1B petitions filed by petitioners with 25 or fewer employees in the United States, with some exceptions.
- Instituted a Fraud Prevention and Detection Fee of $500 for the first H-1B petition filed by a particular petitioner on behalf of a specific beneficiary on or after March 8, 2005.
On August 13, 2010, President Barack Obama signed Public Law 111-230. Public Law 111-230:
- Requires the submission of an additional fee of $2,000 for certain H-1B petitions where those petitions are postmarked on or after August 14, 2010;
- Applies if:
- The H-1B petitioner employs 50 or more employees in the United States; and
- More than 50 percent of the petitioner's employees in the United States are in H-1B, L-1A, or L-1B nonimmigrant status; and
- Will remain in effect through September 30, 2014.