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> Americans want H1Bs to be temporary workers who go back home, not immigrate permanently. That’s why the statute has “temporary” plastered all over it This is

by throwaway_1928 5y ago

> Americans want H1Bs to be temporary workers who go back home, not immigrate permanently. That’s why the statute has “temporary” plastered all over it This is false. The H1B is a 'dual intent visa', which means it "allows foreigners to be temporarily present in the U.S. with lawful status and immigrant intent". > Unless they’re eligible for a real immigrant visa (in America, the main one is the family reunification visa) This is false. An H1B ("temporary worker") from, say, Iraq or Serbia has no wait times for a green card. In contrast, a child ("family reunification") of a Mexican US Citizen must wait at least 20 years for a green card.

rayiner 5y ago
That’s not a quote from the statute. Under INA 214(b), an immigrant entering the country is presumed to have immigrant intent unless he can prove that he intends to stay only temporarily and plans to leave. This is a condition of entry on any non-immigrant visa, including the H1-B. Ordinarily, applying for permanent residency would signal immigrant intent, which would be a violation of the H1B. The INS later created “dual intent” as a legal fiction that says that applying for a green card doesn’t, by itself, create a presumption of immigrant intent. Congress codified this narrow exception in the 1990s—but never eliminated the requirement that H1Bs have non-immigrant intent. See section 205(h) on PDF page 66: https://www.justice.gov/sites/default/files/eoir/legacy/2009/03/04/IMMACT1990.pdf https://www.justice.gov/sites/default/files/eoir/legacy/2009... > (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, When someone here on an H1B applies for a green card, the government winks and says “we will both pretend that you still intend to go back home.” Their legal rights are limited to this indulgence. If they signed an affidavit swearing that “I definitely intend to immigrate here permanently and abandon my residence in my home country” the government might well be forced to kick you out.
- throwaway_1928 5y ago
  INA 214(h) may be interpreted as follows: "In addition, INA 214(h) provides that an H-1B nonimmigrant may have "dual intent," i.e., the fact that an H-1B nonimmigrant has sought permanent residence in the United States or will be seeking such status in the future does not preclude him or her from obtaining or maintaining H-1B nonimmigrant status. The applicant may legitimately come to the United States as a nonimmigrant under the H-1B classification and depart voluntarily at the end of his or her authorized period of stay, and, at the same time, lawfully seek to become a permanent resident of the United States without jeopardizing H-1B nonimmigrant status. Consequently, your evaluation of an applicant’s eligibility for an H-1B visa must not focus on the issue of immigrant intent." [1] [1] https://fam.state.gov/fam/09FAM/09FAM040210.html https://fam.state.gov/fam/09FAM/09FAM040210.html
  - rayiner 5y ago
    You’re quoting a State Department policies and procedures handbook. Its not the statute or even a regulation. It describes the current “wink, wink” practice that exists—as I noted above. But it doesn’t tell you what the law means, or give H1B holders any legal rights. See United States v. Mead. And it can be changed by any administration on a whim.
    - throwaway_1928 5y ago
      I agree with you that administrations can do pretty much whatever they want, but I think you are missing the point: 1. if H1Bs are not to lead to green cards per your interpretation of existing laws, then no H1Bs should lead to green cards, regardless of country of origin 2. if H1Bs do lead to green cards as we know they do in practice, as per my 'dual intent' understanding, or as per your 'wink wink' description, then they should lead to green cards regardless of country of origin But the inconsistency in providing green cards to Tunisian H1Bs in 18 months while providing green cards to Indian H1Bs in 100 years is where the problem arises, and that is why the young author with a bright future is headed to India instead of applying his intelligence and abilities in the US.
therealrootuser 5y ago
Just trying to understand, what do you mean by a "Mexican US Citizen"? When I read this originally, I was a bit confused why the child would not have been a US citizen as well by merit of being born to a US Citizen...but I think you're saying that the parent received US citizenship after the child was born?
- throwaway_1928 5y ago
  Yes, it could be one of many scenarios including the one you mention. It could also be that the child of the US citizen was born in Mexico perhaps during a vacation or prolonged stay. For that child to become a US citizen would take at least 20 years and perhaps much longer to the point it would not be feasible, like in the case of the author.
ryandrake 5y ago
Why not go right to the source: https://www.dol.gov/agencies/whd/immigration/h1b https://www.dol.gov/agencies/whd/immigration/h1b "The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States." At least according to the U.S. government's Department of Labor, H-1B is a nonimmigrant visa, offering temporary employment, for specialty occupations that cannot be found in the U.S. workforce. That said, it is highly likely there is some other official government source backing up your claim that it (as you quote from somewhere) "allows foreigners to be temporarily present in the U.S. with lawful status and immigrant intent". The U.S. government has a reputation for providing conflicting information!
- throwaway_1928 5y ago
  "In addition, INA 214(h) provides that an H-1B nonimmigrant may have "dual intent," i.e., the fact that an H-1B nonimmigrant has sought permanent residence in the United States or will be seeking such status in the future does not preclude him or her from obtaining or maintaining H-1B nonimmigrant status. The applicant may legitimately come to the United States as a nonimmigrant under the H-1B classification and depart voluntarily at the end of his or her authorized period of stay, and, at the same time, lawfully seek to become a permanent resident of the United States without jeopardizing H-1B nonimmigrant status. Consequently, your evaluation of an applicant’s eligibility for an H-1B visa must not focus on the issue of immigrant intent." [1] [1] https://fam.state.gov/fam/09FAM/09FAM040210.html https://fam.state.gov/fam/09FAM/09FAM040210.html

rayiner 5y ago

That’s not a quote from the statute. Under INA 214(b), an immigrant entering the country is presumed to have immigrant intent unless he can prove that he intends to stay only temporarily and plans to leave. This is a condition of entry on any non-immigrant visa, including the H1-B. Ordinarily, applying for permanent residency would signal immigrant intent, which would be a violation of the H1B. The INS later created “dual intent” as a legal fiction that says that applying for a green card doesn’t, by itself, create a presumption of immigrant intent. Congress codified this narrow exception in the 1990s—but never eliminated the requirement that H1Bs have non-immigrant intent. See section 205(h) on PDF page 66: https://www.justice.gov/sites/default/files/eoir/legacy/2009/03/04/IMMACT1990.pdf https://www.justice.gov/sites/default/files/eoir/legacy/2009... > (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, When someone here on an H1B applies for a green card, the government winks and says “we will both pretend that you still intend to go back home.” Their legal rights are limited to this indulgence. If they signed an affidavit swearing that “I definitely intend to immigrate here permanently and abandon my residence in my home country” the government might well be forced to kick you out.

throwaway_1928 5y ago
INA 214(h) may be interpreted as follows: "In addition, INA 214(h) provides that an H-1B nonimmigrant may have "dual intent," i.e., the fact that an H-1B nonimmigrant has sought permanent residence in the United States or will be seeking such status in the future does not preclude him or her from obtaining or maintaining H-1B nonimmigrant status. The applicant may legitimately come to the United States as a nonimmigrant under the H-1B classification and depart voluntarily at the end of his or her authorized period of stay, and, at the same time, lawfully seek to become a permanent resident of the United States without jeopardizing H-1B nonimmigrant status. Consequently, your evaluation of an applicant’s eligibility for an H-1B visa must not focus on the issue of immigrant intent." [1] [1] https://fam.state.gov/fam/09FAM/09FAM040210.html https://fam.state.gov/fam/09FAM/09FAM040210.html
- rayiner 5y ago
  You’re quoting a State Department policies and procedures handbook. Its not the statute or even a regulation. It describes the current “wink, wink” practice that exists—as I noted above. But it doesn’t tell you what the law means, or give H1B holders any legal rights. See United States v. Mead. And it can be changed by any administration on a whim.
  - throwaway_1928 5y ago
    I agree with you that administrations can do pretty much whatever they want, but I think you are missing the point: 1. if H1Bs are not to lead to green cards per your interpretation of existing laws, then no H1Bs should lead to green cards, regardless of country of origin 2. if H1Bs do lead to green cards as we know they do in practice, as per my 'dual intent' understanding, or as per your 'wink wink' description, then they should lead to green cards regardless of country of origin But the inconsistency in providing green cards to Tunisian H1Bs in 18 months while providing green cards to Indian H1Bs in 100 years is where the problem arises, and that is why the young author with a bright future is headed to India instead of applying his intelligence and abilities in the US.

therealrootuser 5y ago

Just trying to understand, what do you mean by a "Mexican US Citizen"? When I read this originally, I was a bit confused why the child would not have been a US citizen as well by merit of being born to a US Citizen...but I think you're saying that the parent received US citizenship after the child was born?

throwaway_1928 5y ago
Yes, it could be one of many scenarios including the one you mention. It could also be that the child of the US citizen was born in Mexico perhaps during a vacation or prolonged stay. For that child to become a US citizen would take at least 20 years and perhaps much longer to the point it would not be feasible, like in the case of the author.

ryandrake 5y ago

Why not go right to the source: https://www.dol.gov/agencies/whd/immigration/h1b https://www.dol.gov/agencies/whd/immigration/h1b "The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States." At least according to the U.S. government's Department of Labor, H-1B is a nonimmigrant visa, offering temporary employment, for specialty occupations that cannot be found in the U.S. workforce. That said, it is highly likely there is some other official government source backing up your claim that it (as you quote from somewhere) "allows foreigners to be temporarily present in the U.S. with lawful status and immigrant intent". The U.S. government has a reputation for providing conflicting information!

throwaway_1928 5y ago
"In addition, INA 214(h) provides that an H-1B nonimmigrant may have "dual intent," i.e., the fact that an H-1B nonimmigrant has sought permanent residence in the United States or will be seeking such status in the future does not preclude him or her from obtaining or maintaining H-1B nonimmigrant status. The applicant may legitimately come to the United States as a nonimmigrant under the H-1B classification and depart voluntarily at the end of his or her authorized period of stay, and, at the same time, lawfully seek to become a permanent resident of the United States without jeopardizing H-1B nonimmigrant status. Consequently, your evaluation of an applicant’s eligibility for an H-1B visa must not focus on the issue of immigrant intent." [1] [1] https://fam.state.gov/fam/09FAM/09FAM040210.html https://fam.state.gov/fam/09FAM/09FAM040210.html