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Sections of U.S. Immigration Law
Relevant to H1B Visas.
This page was last updated in August, 1998.
"H1B"
8 USC 1101(a)(15)(H)(i)(b)
(H) an alien (i) ... (b) subject to section 1182(j)(2) of this title, who is
coming temporarily to the United States to perform services (other than services
described in subclause (a) during the period in which such subclause applies and
other than services described in subclause (ii)(a) or in subparagraph (O) or
(P)) in a specialty occupation described in section 1184(i)(1)
of this title or as a fashion model, who meets the requirements for the
occupation specified in section 1184(i)(2) of this title
or, in the case of a fashion model, is of distinguished merit and ability, 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; or (ii)(a)
having a residence in a foreign country which he has no intention of abandoning
who is coming temporarily to the United States to perform agricultural labor or
services, as defined by the Secretary of Labor in regulations and including
agricultural labor defined in section 3121(g) of title 26 and agriculture as
defined in section 203(f) of title 29, of a temporary or seasonal nature, or (b)
having a residence in a foreign country which he has no intention of abandoning
who is coming temporarily to the United States to perform other temporary
service or labor if unemployed persons capable of performing such service or
labor cannot be found in this country, but this clause shall not apply to
graduates of medical schools coming to the United States to perform services as
members of the medical profession;
"The Annual
Cap" & "Duration of Visas"
8 USC 1184(g)
(g) Temporary workers and trainees; limitation on numbers
(1) The total number of aliens who may be issued visas or otherwise
provided nonimmigrant status during any fiscal year (beginning with
fiscal year 1992) -
(A) under section 1101(a)(15)(H)(i)(b) of this
title may not exceed 65,000, or
(B) under section 1101(a)(15)(H)(ii)(b) of this title may not exceed
66,000.
(2) The numerical limitations of paragraph (1) shall only apply to
principal aliens and not to the spouses or children of such aliens.
(3) Aliens who are subject to the numerical limitations of paragraph (1)
shall be issued visas (or otherwise provided nonimmigrant status) in the order
in which petitions are filed for such visas or status.
(4) In the case of a nonimmigrant described in section 1101(a)(15)(H)(i)(b)
of this title, the period of authorized admission as such a nonimmigrant may
not exceed 6 years
"Specialty
Occupation Definition"
8 USC 1184(i)
(i) "Specialty occupation" defined
(1) For purposes of section 1101(a)(15)(H)(i)(b) of this title and
paragraph (2), the term "specialty occupation" means an occupation
that requires -
(A) theoretical and practical application of a body of highly specialized
knowledge, and
(B) 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 United
States.
(2) For purposes of section 1101(a)(15)(H)(i)(b) of this title, the
requirements of this paragraph, with respect to a specialty occupation, are -
(A) full state licensure to practice in the occupation, if such licensure
is required to practice in the
occupation,
(B) completion of the degree described in paragraph (1)(B) for the
occupation, or
(C)(i) experience in the specialty equivalent to the completion of such
degree, and (ii) recognition of
expertise in the specialty through progressively responsible positions
relating to the specialty.
"Labor Condition
Application"
8 USC 1182(n)
(n) Labor condition application
(1) No alien may be admitted or provided status as a nonimmigrant described
in section 1101(a)(15)(H)(i)(b) of this title in an occupational
classification unless the employer has filed with the Secretary of Labor an
application stating the following:
(A) The employer--
(i) is offering and will offer during the period of authorized
employment to aliens admitted or provided status as a nonimmigrant
described in section 1101(a)(15)(H)(i)(b) of this title wages that are at
least--
(I) the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the specific
employment in question, or
(II) the prevailing wage level for the occupational classification in
the area of employment, whichever is greater, based on the best
information available as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will
not adversely affect the working conditions of workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in
the occupational classification at the place of employment.
(C) The employer, at the time of filing the application--
(i) has provided notice of the filing under this paragraph to the
bargaining representative (if any) of the employer's employees in the
occupational classification and area for which aliens are sought, or
(ii) if there is no such bargaining representative, has posted notice
of filing in conspicuous locations at the place of employment.
(D) The application shall contain a specification of the number of
workers sought, the occupational classification in which the workers will be
employed, and wage rate and conditions under which they will be employed.
The employer shall make available for public examination, within one
working day after the date on which an application under this paragraph is
filed, at the employer's principal place of business or worksite, a copy of
each such application (and such accompanying documents as are necessary).
The Secretary shall compile, on a current basis, a list (by employer and by
occupational classification) of the applications filed under this
subsection. Such list shall include the wage rate, number of aliens sought,
period of intended employment, and date of need. The Secretary shall make
such list available for public examination in Washington, D.C. The Secretary
of Labor shall review such an application only for completeness and obvious
inaccuracies. Unless the Secretary finds that the application is incomplete
or obviously inaccurate, the Secretary shall provide the certification
described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the
date of the filing of the application.
(2)
(A) The Secretary shall establish a process for the receipt,
investigation, and disposition of complaints respecting a petitioner's
failure to meet a condition specified in an application submitted under
paragraph (1) or a petitioner's misrepresentation of material facts in such
an application. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives). No investigation or
hearing shall be conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than 12 months
after the date of the failure or misrepresentation, respectively. The
Secretary shall conduct an investigation under this paragraph if there is
reasonable cause to believe that such a failure or misrepresentation has
occurred.
(B) Under such process, the Secretary shall provide, within 30 days after
the date such a complaint is filed, for a determination as to whether or not
a reasonable basis exists to make a finding described in subparagraph (C).
If the Secretary determines that such a reasonable basis exists, the
Secretary shall provide for notice of such determination to the interested
parties and an opportunity for a hearing on the complaint, in accordance
with section 556 of title 5, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary shall make a
finding concerning the matter by not later than 60 days after the date of
the hearing. In the case of similar complaints respecting the same
applicant, the Secretary may consolidate the hearings under this
subparagraph on such complaints.
(C) If the Secretary finds, after notice and opportunity for a hearing, a
failure to meet a condition of paragraph (1)(B), a substantial failure to
meet a condition of paragraphs (1)(C) or (1)(D), a willful failure to meet a
condition of paragraph (1)(A), or a misrepresentation of material fact in an
application--
(i) the Secretary shall notify the Attorney General of such finding and
may, in addition, impose such other administrative remedies (including
civil monetary penalties in an amount not to exceed $1,000 per violation)
as the Secretary determines to be appropriate, and
(ii) the Attorney General shall not approve petitions filed with
respect to that employer under section 1154 or 1184(c) of this title
during a period of at least 1 year for aliens to be employed by the
employer.
(D) If the Secretary finds, after notice and opportunity for a hearing,
that an employer has not paid wages at the wage level specified under the
application and required under paragraph (1), the Secretary shall order the
employer to provide for payment of such amounts of back pay as may be
required to comply with the requirements of paragraph (1), whether or not a
penalty under subparagraph (C) has been imposed.
"Per Country Limits"
8 USC 1152
Sec. 1152. Numerical limitations on individual foreign states
(a) Per country level
(1) Nondiscrimination
Except as specifically provided in paragraph (2) and in sections
1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall
receive any preference or priority or be discriminated against in the
issuance of an immigrant visa because of the person's race, sex,
nationality, place of birth, or place of residence.
(2) Per country levels for family-sponsored and employment-based
immigrants
Subject to paragraphs (3) and (4), the total number of immigrant visas made
available to natives of any single foreign state or dependent area under
subsections (a) and (b) of section 1153 of this title in any fiscal year may
not exceed 7 percent (in the case of a single foreign state) or 2 percent
(in the case of a dependent area) of the total number of such visas made
available under such subsections in that fiscal year.
(3) Exception if additional visas available
If because of the application of paragraph (2) with respect to one or more
foreign states or dependent areas, the total number of visas available under
both subsections (a) and (b) of section 1153 of this title for a calendar
quarter exceeds the number of qualified immigrants who otherwise may be
issued such a visa, paragraph (2) shall not apply to visas made available to
such states or areas during the remainder of such calendar quarter.
(4) Special rules for spouses and children of lawful permanent resident
aliens
(A) 75 percent of 2nd preference set-aside for spouses and children not
subject to per country limitation
(i) In general
Of the visa numbers made available under section 1153(a) of this title
to immigrants described in section 1153(a)(2)(A) of this title in any
fiscal year, 75 percent of the 2-A floor (as defined in clause (ii))
shall be issued without regard to the numerical limitation under
paragraph (2).
(ii) ``2-A floor'' defined
In this paragraph, the term ``2-A floor'' means, for a fiscal year, 77
percent of the total number of visas made available under section
1153(a) of this title to immigrants described in section 1153(a)(2) of
this title in the fiscal year.
(B) Treatment of remaining 25 percent for countries subject to
subsection (e)
(i) In general
Of the visa numbers made available under section 1153(a) of this title
to immigrants described in section 1153(a)(2)(A) of this title in any
fiscal year, the remaining 25 percent of the 2-A floor shall be
available in the case of a state or area that is subject to subsection
(e) of this section only to the extent that the total number of visas
issued in accordance with subparagraph (A) to natives of the foreign
state or area is less than the subsection (e) ceiling (as defined in
clause (ii)).
(ii) ``Subsection (e) ceiling'' defined
In clause (i), the term ``subsection (e) ceiling'' means, for a foreign
state or dependent area, 77 percent of the maximum number of visas that
may be made available under section 1153(a) of this title to immigrants
who are natives of the state or area under section 1153(a)(2) of this
title consistent with subsection (e) of this section.
(C) Treatment of unmarried sons and daughters in countries subject to
subsection (e)
In the case of a foreign state or dependent area to which subsection (e)
of this section applies, the number of immigrant visas that may be made
available to natives of the state or area under section 1153(a)(2)(B) of
this title may not exceed--
(i) 23 percent of the maximum number of visas that may be made
available under section 1153(a) of this title to immigrants of the state
or area described in section 1153(a)(2) of this title consistent with
subsection (e) of this section, or
(ii) the number (if any) by which the maximum number of visas that
may be made available under section 1153(a) of this title to immigrants
of the state or area described in section 1153(a)(2) of this title
consistent with subsection (e) of this section exceeds the number of
visas issued under section 1153(a)(2)(A) of this title, whichever is
greater.
(D) Limiting pass down for certain countries subject to subsection (e)
In the case of a foreign state or dependent area to which subsection (e)
of this section applies, if the total number of visas issued under section
1153(a)(2) of this title exceeds the maximum number of visas that may be
made available to immigrants of the state or area under section 1153(a)(2)
of this title consistent with subsection (e) of this section (determined
without regard to this paragraph), in applying paragraphs (3) and (4) of
section 1153(a) of this title under subsection (e)(2) of this section all
visas shall be deemed to have been required for the classes specified in
paragraphs (1) and (2) of such section.
(b) Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and
territory under the international trusteeship system of the United Nations,
other than the United States and its outlying possessions, shall be treated as
a separate foreign state for the purposes of a numerical level established
under subsection (a)(2) of this section when approved by the Secretary of
State. All other inhabited lands shall be attributed to a foreign state
specified by the Secretary of State. For the purposes of this chapter the
foreign state to which an immigrant is chargeable shall be determined by birth
within such foreign state except that (1) an alien child, when accompanied by
or following to join his alien parent or parents, may be charged to the
foreign state of either parent if such parent has received or would be
qualified for an immigrant visa, if necessary to prevent the separation of the
child from the parent or parents, and if immigration charged to the foreign
state to which such parent has been or would be chargeable has not reached a
numerical level established under subsection (a)(2) of this section for that
fiscal year; (2) if an alien is chargeable to a different foreign state from
that of his spouse, the foreign state to which such alien is chargeable may,
if necessary to prevent the separation of husband and wife, be determined by
the foreign state of the spouse he is accompanying or following to join, if
such spouse has received or would be qualified for an immigrant visa and if
immigration charged to the foreign state to which such spouse has been or
would be chargeable has not reached a numerical level established under
subsection (a)(2) of this section for that fiscal year; (3) an alien born in
the United States shall be considered as having been born in the country of
which he is a citizen or subject, or, if he is not a citizen or subject of any
country, in the last foreign country in which he had his residence as
determined by the consular officer; and (4) an alien born within any foreign
state in which neither of his parents was born and in which neither of his
parents had a residence at the time of such alien's birth may be charged to
the foreign state of either parent.
(c) Chargeability for dependent areas
Any immigrant born in a colony or other component or dependent area of a
foreign state overseas from the foreign state, other than an alien described
in section 1151(b) of this title, shall be chargeable for the purpose of the
limitation set forth in subsection (a) of this section, to the foreign state.
(d) Changes in territory
In the case of any change in the territorial limits of foreign states, the
Secretary of State shall, upon recognition of such change issue appropriate
instructions to all diplomatic and consular offices.
(e) Special rules for countries at ceiling
If it is determined that the total number of immigrant visas made available
under subsections (a) and (b) of section 1153 of this title to natives of any
single foreign state or dependent area will exceed the numerical limitation
specified in subsection (a)(2) of this section in any fiscal year, in
determining the allotment of immigrant visa numbers to natives under
subsections (a) and (b) of section 1153 of this title, visa numbers with
respect to natives of that state or area shall be allocated (to the extent
practicable and otherwise consistent with this section and section 1153 of
this title) in a manner so that--
(1) the ratio of the visa numbers made available under section 1153(a) of
this title to the visa numbers made available under section 1153(b) of this
title is equal to the ratio of the worldwide level of immigration under
section 1151(c) of this title to such level under section 1151(d) of this
title;
(2) except as provided in subsection (a)(4) of this section, the
proportion of the visa numbers made available under each of paragraphs (1)
through (4) of section 1153(a) of this title is equal to the ratio of the
total number of visas made available under the respective paragraph to the
total number of visas made available under section 1153(a) of this title,
and
(3) the proportion of the visa numbers made available under each of
paragraphs (1) through (5) of section 1153(b) of this title is equal to the
ratio of the total number of visas made available under the respective
paragraph to the total number of visas made available under section 1153(b)
of this title.
Nothing in this subsection shall be construed as limiting the number of visas
that may be issued to natives of a foreign state or dependent area under section
1153(a) or 1153(b) of this title if there is insufficient demand for visas for
such natives under section 1153(b) or 1153(a) of this title, respectively, or as
limiting the number of visas that may be issued under section 1153(a)(2)(A) of
this title pursuant to subsection (a)(4)(A) of this section.
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