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Employment law

H-1B specialty occupation visa

The H-1B visa 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.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the U.S. Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment—whichever is greater.

In Texas, as in all states, the H-1B visa program is governed by federal law, not state statutes. The program allows employers to hire nonimmigrant aliens for specialty occupations that require highly specialized knowledge and at least a bachelor's degree or its equivalent. This federal program is designed to assist employers who are unable to find the necessary skills and abilities within the U.S. workforce. To protect U.S. workers and H-1B visa holders, employers must comply with wage standards set by the U.S. Department of Labor. They must pay H-1B workers at least the actual wage paid to other employees with similar experience and qualifications, or the prevailing wage for the occupation in the area of employment, whichever is higher. These requirements ensure that the employment of H-1B workers does not adversely affect the wages and working conditions of U.S. workers in similar positions.

Texas Statutes & Rules

Texas Labor Code, Title 4, Subtitle A, Chapter 21, Subchapter A, Sec. 21.051 - Discrimination by Labor Organizations, Employers, or Employment Agencies
This statute is relevant as it outlines the general prohibition against discrimination in employment, which includes discrimination based on national origin. Employers hiring H-1B workers must comply with these non-discrimination provisions.

Under this section of the Texas Labor Code, an employer may not fail or refuse to hire an individual, discharge an individual, or discriminate in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, national origin, or age. This statute is important for employers in Texas to ensure that they are not discriminating against nonimmigrant workers, such as those on H-1B visas, in favor of U.S. workers or vice versa.

Texas Labor Code, Title 4, Subtitle A, Chapter 21, Subchapter M, Sec. 21.451 - Retaliation
This statute is relevant as it protects employees, including H-1B workers, from retaliation by employers for opposing a discriminatory practice, or for making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing.

This section of the Texas Labor Code prohibits retaliation against a person who, under Chapter 21, opposes a discriminatory practice; makes or files a charge; files a complaint; or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. Employers must be cautious not to retaliate against H-1B workers who exercise their rights under anti-discrimination laws.

Texas Labor Code, Title 4, Subtitle A, Chapter 21, Subchapter I, Sec. 21.202 - Commission Functions and Powers
This statute is relevant as it establishes the functions and powers of the Texas Workforce Commission, which is responsible for enforcing state labor laws, including those that protect H-1B workers.

The Texas Workforce Commission is charged with administering this chapter and with adopting necessary rules for that purpose. The commission may receive, investigate, and act on complaints alleging unlawful employment practices. This statute is significant for H-1B workers as it provides a state-level avenue for addressing potential violations of their employment rights.

Texas Occupations Code, Title 3, Subtitle A, Chapter 53, Subchapter A, Sec. 53.021 - Licensing Authority's General Powers and Duties
This statute is relevant as it discusses the general powers and duties of licensing authorities in Texas, which may be applicable to certain professions that H-1B workers seek to enter.

Licensing authorities in Texas have the power to issue, renew, deny, suspend, or revoke a license and to take other disciplinary action based on the grounds provided by the law. This statute is pertinent for H-1B workers in specialty occupations that require state licensure, as it outlines the authority of Texas licensing bodies over professional credentials.

Federal Statutes & Rules

Immigration and Nationality Act (INA) - 8 U.S.C. § 1101(a)(15)(H)(i)(b)
This section of the INA defines the H-1B visa category and sets the foundation for the program.

The Immigration and Nationality Act (INA) establishes the H-1B visa category, which allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation is defined as one that requires theoretical and practical application of a body of highly specialized knowledge, and a bachelor's degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The H-1B visa is also applicable to fashion models of distinguished merit and ability.

Immigration and Nationality Act (INA) - 8 U.S.C. § 1182(n)(1)
This section of the INA outlines the labor condition application requirements and protections for U.S. workers and H-1B workers.

Under this provision, employers seeking to hire H-1B workers must file a labor condition application (LCA) with the Department of Labor. The LCA must include attestations that the employer will pay the H-1B worker a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area. The employer must also attest that employing H-1B workers will not adversely affect the working conditions of workers similarly employed in the area, that there is no strike or lockout at the worksite, and that notice of the LCA has been provided to existing employees. The LCA is designed to ensure that the employment of H-1B workers does not undermine the labor market for U.S. workers.

American Competitiveness and Workforce Improvement Act (ACWIA) - Title IV of Pub.L. 105–277
ACWIA was enacted as part of the response to perceived shortages in the U.S. high-tech workforce and includes provisions related to H-1B visas.

The ACWIA made several changes to the H-1B program, including the establishment of a cap on the number of H-1B visas issued each year. It also introduced additional requirements for employers who are 'H-1B dependent' (i.e., have a high percentage of H-1B workers in relation to their total workforce). These employers must make additional attestations regarding the displacement of U.S. workers and the recruitment of U.S. workers. The ACWIA also imposed an additional fee on H-1B petitions, which is used to fund training and education programs for U.S. workers in technical fields.

H-1B Visa Reform Act of 2004 - Title IV of Pub.L. 108–447
This act includes provisions that further amend the H-1B visa program, particularly concerning fraud prevention and compliance mechanisms.

The H-1B Visa Reform Act of 2004 introduced measures to reduce fraud and abuse in the H-1B program. It increased the H-1B visa petition fee to fund fraud prevention and detection measures. The act also mandated the development of a system for employers to electronically file labor condition applications. Additionally, it provided for the allocation of certain H-1B visas specifically to foreign workers with a master's degree or higher from U.S. institutions of higher education.