TEMPORARY WORKERS AND TRAINEES ("H")

Until 1990, there were no numerical limitations on nonimmigrants. That year, the law was changed to impose numerical limitations upon certain categories of nonimmigrant workers. Professionals (H-1B) were given a 65,000 annual cap while skilled workers (H-2B) were capped at 66,000. The H-1B cap was raised to 115,000 per fiscal year on October 21, 1998, and to 195,000 per fiscal year on October 17, 2000.

Formerly, all qualified persons of "distinguished merit and ability" (professionals and persons of prominence) were encompassed within the H-1 nonimmigrant category. A 1989 law divided the H-1 category into 2 categories designated H-1A and H-1B. The 1990 law divided the H-1B category into 3 separate categories. Persons who formerly would have been included within the H-1 category now may enter the U.S. within the following categories:

(1) H-1A - The Immigration Nursing Relief Act of 1989 created this category exclusively for registered nurses (This Act expired on September 1, 1995.);

(2) H-1B - persons performing in "specialty occupations";

(3) O - aliens of extraordinary ability in the sciences, arts, education, business and athletics; and

(4) P - other athletes and entertainers.

With regard to H-1B status, the act defines a specialty occupation as one which requires: (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.

In addition, to qualify for H-1B status, one must possess either a full state license to practice the specialty occupation, the appropriate university degree, or experience equivalent to a degree and professional progression through positions leading to the specialty position.

Labor condition applications
Prior to submitting an H-1B petition to INS, an employer must submit an application to the U.S. Secretary of Labor certifying that he is (1) offering (and will offer during the period of authorized employment to aliens employed in the occupational classification and in the area of employment) either the actual wage level at the place of employment or the prevailing wage level in the area of employment, whichever is higher, (2) that the working conditions for such alien(s) will not adversely affect the working conditions of workers similarly employed, (3) that there is not a strike or lockout, and (4) that a notice of the application has been provided to the employees' bargaining representative, or, if there is no bargaining representative, that notice has been posted in conspicuous locations at the place of employment. Any "aggrieved person or organization" may file a complaint with the Secretary of Labor to challenge such an application.

Other H provisions
The act limits the length of stay of an H-1B nonimmigrant to six years. The American Competitiveness in the 21st Century Act of 2000 creates certain exceptions to the six-year limitation.

If an H-1B or H-2B (temporary worker) alien is dismissed from employment before the end of the period of his authorized admission, his employer is liable for the reasonable costs of his return transportation home.

With regard to H-3 trainees, the act provides that the training program must not be designed primarily to provide productive employment.