.
Temporary Professional, Managerial, and
Skilled Foreign Workers: Policy and Trends
Ruth Ellen Wasem
Specialist in Immigration Policy
September 22, 2014
Congressional Research Service
7-5700
www.crs.gov
R43735
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Temporary Professional, Managerial, and Skilled Foreign Workers: Policy and Trends
Summary
Temporary visas for professional, managerial, and skilled foreign workers have become an
important gateway for high-skilled immigration to the United States. Over the past two decades,
the number of visas issued for temporary employment-based admission has more than doubled
from just over 400,000 in FY1994 to over 1 million in FY2013. While these visas numbers
include some unskilled and low-skilled workers as well as accompanying family members, the
visas for managerial, skilled, and professional workers dominate the trends.
Since 1952, the Immigration and Nationality Act (INA) has authorized visas for foreign nationals
who would perform needed services because of their high educational attainment, technical
training, specialized experience, or exceptional ability. Today, there are several temporary visa
categories that enable employment-based temporary admissions for highly skilled foreign
workers. These visa categories are commonly referred to by the letter and numeral that denote
their subsection in the INA. They perform work that ranges from skilled labor to management and
professional positions to jobs requiring extraordinary ability in the sciences, arts, education,
business, or athletics.
Policy makers and advocates have focused on two visa categories in particular: H-1B visas for
professional specialty workers, and L visas for intra-company transferees. These two
nonimmigrant visas epitomize the tensions between the global competition for talent and potential
adverse effects on the U.S. workforce. The employers of H-1B workers are the only ones required
to meet labor market tests in order to hire professional, managerial, and skilled foreign workers.
Congress has an ongoing interest in regulating the immigration of professional, managerial, and
skilled foreign workers to the United States. This workforce is seen by many as a catalyst of U.S.
global economic competitiveness and is likewise considered a key element of the legislative
options aimed at stimulating economic growth. The challenge central to the policy debate is
facilitating the migration of professional, managerial, and skilled foreign workers without putting
downward pressures on U.S. workers and U.S. students entering the labor market.
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Contents
Overview of the Issues ..................................................................................................................... 1
Policy Questions ........................................................................................................................ 3
Specific Concerns ...................................................................................................................... 3
H-1B Visa Issues ................................................................................................................. 4
L-1 Visa Issues .................................................................................................................... 5
Managerial, Professional, and Skilled Workers ............................................................................... 6
Temporary Professional Specialty Worker: H-1B Visas ............................................................ 6
Treaty Professional Specialty Workers: TN and E-3 Visas........................................................ 9
Cultural Exchange Workers: J Visas .......................................................................................... 9
“Conrad 30” J Visa Waiver .................................................................................................. 9
Multinational Executive and Specialist Employees: L Visas .................................................. 10
International Investors and Traders: E Visas ........................................................................... 10
Persons with Outstanding and Extraordinary Ability: O and P Visas ...................................... 10
Religious Workers: R Visas ..................................................................................................... 11
Trends by Category of Worker ....................................................................................................... 11
Optional Practical Training (OPT) ................................................................................................. 13
Taxation Rules and Exceptions ...................................................................................................... 15
Federal Income Taxes .............................................................................................................. 15
Social Security and Medicare Taxes ........................................................................................ 15
Opportunities for Legal Permanent Residence .............................................................................. 17
Dual Intent and the §214(b) Presumption ................................................................................ 17
Concluding Comments .................................................................................................................. 18
Figures
Figure 1. Temporary Employment-Based Visas Issued, FY1994-FY2013 ...................................... 2
Figure 2. Total H-1B Petitions Approved, FY1994-FY2012 ........................................................... 8
Figure 3. Visas Issued to Principals by Categories of Temporary Managerial,
Professional, and Skilled Employees in FY2013........................................................................ 12
Figure 4. Trends in Temporary Managerial, Professional, and Skilled Employee Visas
Issued, FY1994–FY2013 ............................................................................................................ 13
Figure 5. F-1 Foreign Students Approved for Optional Practical Training: .................................. 14
Contacts
Author Contact Information........................................................................................................... 18
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ongress has an ongoing interest in regulating the immigration of professional, managerial,
and skilled foreign workers to the United States. This workforce is seen by many as a
C catalyst of U.S. global economic competitiveness and is likewise considered a key
element of the legislative options aimed at stimulating economic growth. The challenge central to
the policy debate is facilitating the migration of professional, managerial, and skilled foreign
workers without adversely effecting U.S. workers and U.S. students entering the labor market.
This report opens with an overview of the policy issues. It follows with a summary of each of the
various visa categories available for temporary professional, managerial, and skilled foreign
workers as well as an analysis of the trends in the use of these various visas over the past two
decades. The policy of authorizing foreign students to work in the United States for at least a year
following graduation is discussed next. The labor market tests for employers hiring temporary
foreign workers are also summarized. The rules regarding federal taxation of professional,
managerial, and skilled foreign workers are explained. The report concludes with a discussion of
the avenues for professional, managerial, and skilled foreign workers to become legal permanent
residents (LPRs) in the United States.
Overview of the Issues
Temporary visas for professional, managerial, and skilled foreign workers have become an
important gateway for high-skilled immigration to the United States.1 Over the past two decades,
the number of visas issued for temporary employment-based admission has more than doubled
from just over 400,000 in FY1994 to over 1 million in FY2013.2 As Figure 1 shows, the total
number of temporary employment-based visas issued in FY2007 and FY2008 surpassed 1 million
and subsequently fell during the 2007-2009 recession.3 While the total visas numbers include
some unskilled and low-skilled workers,4 the visas for managerial, skilled, and professional
workers depicted in Figure 1 clearly dominate the trends. The peak year was FY2007, when the
number of visas issued to professional, managerial, and skilled foreign workers surpassed
729,000.
The data presented in Figure 1 understate the trends in professional, managerial, and skilled
foreign workers because the State Department does not issue visas to nonimmigrants that change
status within the United States. For example, a foreign national who is in the United States as a
student may convert status to a temporary foreign worker nonimmigrant without going abroad to
obtain a new visa. For comparison, the Department of Homeland Security Office of Immigration
Statistics estimated that there were approximately 1.1 million temporary workers and long-term
1 Temporary visas are issued for an expressed purpose and a specific period of time. In most cases, the foreign national
must demonstrate they have a “home they have no intention of abandoning” in their native country. For more
background on temporary visas, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by
Ruth Ellen Wasem.
2 Bureau of Consular Affairs, Report of the Visa Office, U.S. Department of State, Table XVI, multiple years.
3 From December 2007 to June 2009, the economy experienced the longest and deepest recession since the Great
Depression of the 1930s. CRS Report R41578, Unemployment: Issues in the 113th Congress, by Jane G. Gravelle
4 In FY2013, the total of 1,006,713 nonimmigrants included 134,504 temporary foreign workers in agriculture, seasonal
or shortage occupations, or trainee positions. It also included 96,753 spouses and minor children of temporary workers.
Bureau of Consular Affairs, Report of the Visa Office 2013, U.S. Department of State, Table XVI, 2014.
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exchange residents living in the United States in January 2012;5 the State Department reported
936,824 visas issued to temporary employment-based workers and their families in FY2012.6
Figure 1. Temporary Employment-Based Visas Issued, FY1994-FY2013
Source: CRS presentation of data from the annual reports of the U.S. Department of State Office of Visa
Statistics.
Notes: Includes managerial, professional, skilled, and unskilled temporary employees and accompanying family;
does not include foreign nationals converting to temporary employment-based visas within the United States.
The foreign labor certification program in the U.S. Department of Labor (DOL) is responsible for
ensuring that foreign workers do not displace or adversely affect the working conditions of U.S.
workers. Under current law, DOL adjudicates labor certification applications (LCA) for
permanent employment-based immigrants.7 Many of the foreign nationals entering the United
States on a temporary basis for employment, however, are not subject to any labor market tests
(i.e., demonstrating that there are not sufficient U.S. workers who are able, willing, qualified, and
available), and as a result, their employers do not file LCAs with the DOL. There are several
groups of temporary foreign employees, however, that are covered by labor market tests.8 DOL
5 Bryan Baker, Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States:
January 2012, U.S. Department of Homeland Security Office of Immigration Statistics, Population Estimates, February
2014.
6 Bureau of Consular Affairs, Report of the Visa Office 2012, U.S. Department of State, Table XVI, 2013.
7 The INA bars the admission of employment-based lawful permanent residents who seek to enter the U.S. to perform
skilled or unskilled labor, unless it is determined that (1) there are not sufficient U.S. workers who are able, willing,
qualified, and available; and (2) the employment of the alien will not adversely affect the wages and working
conditions of similarly employed workers in the United States.
8 Employers of those entering with H visas are generally required to have approved labor attestations, which includes
H-2A temporary agricultural workers, and H-2B temporary nonagricultural workers as well as H-1B temporary
professional workers.
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adjudicates the streamlined LCA known as labor attestations for certain temporary workers, as
discussed more fully below.9
Policy Questions
The admission of professional, managerial, and skilled foreign workers poses a complex set of
policy questions as the United States competes internationally for the most talented workers in the
world, while the nation also contends with historically high long-term unemployment rates and
youth unemployment rates.10
• Should the number of professional, managerial, and skilled foreign workers be
numerically limited each year? If so, should some classes or types of workers be
exempt from numerical limits?
• Should employers of professional, managerial, and skilled foreign workers be
required to meet labor markets tests, such as making efforts to recruit U.S.
workers and offering wages and benefits that are comparable to similarly
employed U.S. workers?
• What, if any, labor protections and worker rights should be extended to
professional, managerial, and skilled foreign workers to prevent abuse or
exploitation of the worker?
• What, if any, guarantees should professional, managerial, and skilled foreign
workers make to their employers to ensure the contractual obligations are met?
• Should professional, managerial, and skilled foreign workers have “visa
portability” so they can change jobs? If so, to what visa categories and under
what circumstances should visa portability apply?
• Should regulations governing the admission of professional, managerial, and
skilled foreign workers be streamlined so that the rules are less time consuming
and burdensome for employers?
• Should professional, managerial, and skilled foreign workers be permitted to
have “dual intent,” that is, to apply for lawful permanent resident (LPR) status
while seeking or renewing temporary visas? If so, for what visa categories and
under what circumstances should dual intent be permitted?
Specific Concerns
In addition to these cross-cutting questions, policy makers and advocates have focused on two
visa categories in particular: H-1B visas for professional specialty workers, and L visas for intra-
company transferees. These two nonimmigrant visas epitomize the tensions between the global
competition for talent and potential adverse effects on the U.S. workforce.
9 For a fuller discussion and analysis, see CRS Report R43223, The Framework for Foreign Workers’ Labor
Protections Under Federal Law, by Margaret Mikyung Lee and Jon O. Shimabukuro; and, CRS Report RL33977,
Immigration of Foreign Workers: Labor Market Tests and Protections, by Ruth Ellen Wasem.
10 For an in-depth discussion of the employment rates, see CRS Report R43476, Returning to Full Employment: What
Do the Indicators Tell Us?, by Marc Labonte.
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H-1B Visa Issues
H-1B visas are for temporary “professional specialty workers,” an employment category closely
associated with science, technology, engineering, and mathematics (STEM) fields, but not limited
to them.11 The H-1B visa has been an important avenue for many U.S. businesses seeking to
recruit high-skilled foreign workers, but the category has numerical limits. 12 Applications for new
H-1B workers have routinely exceeded such limits in recent years—in some years exceeding
limits during the first week or even on the first day that applications are received. In addition to
these concerns about whether employers have adequate access to H-1B workers, some Members
of Congress have raised questions about whether H-1B workers may be placing downward
pressure on wages and benefits as well as discouraging or displacing U.S. students in STEM
fields.13
Over the years, the U.S. Government Accountability Office (GAO) has issued reports that
recommended more controls to protect workers, to prevent abuses, and to streamline services in
the issuing of H-1B visas. GAO has observed that the U.S. Department of Labor (DOL) has
limited authority to question information on the labor attestation form and to initiate enforcement
activities.14 In 2011, GAO identified several weaknesses in the H-1B program’s ability to protect
workers: (1) oversight that is fragmented between four agencies and restricted by law; (2) lack of
legal authority to hold employers accountable to program requirements when they obtain H-1B
11 For a fuller discussion of science, technology, engineering, and mathematics (STEM) fields, see CRS Report
R42642, Science, Technology, Engineering, and Mathematics (STEM) Education: A Primer, by Heather B. Gonzalez
and Jeffrey J. Kuenzi.
12 National Academy of Sciences, National Academy of Engineering, and Institute of Medicine, Rising Above the
Gathering Storm: Energizing and Employing America for a Brighter Economic Future, Committee on Prospering in the
Global Economy of the 21st Century, 2007; Brookings Institution and George Mason University, Immigration Policy:
Highly Skilled Workers and U.S. Competitiveness and Innovation, Forum hosted by the Brookings Center for
Technology Innovation and the George Mason Center for Science and Technology Policy, February 7, 2011; Vivek
Wadhwa, Guillermina Jasso, and Ben Rissing, et al., Intellectual Property, the Immigration Backlog, and a Reverse
Brain-Drain, part III, Duke University, New York University, Harvard Law School and the Ewing Marion Kauffman
Foundation, August 2007; U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy
and Enforcement, H-1B Visas: Designing a Program To Meet the Needs of the U.S. Economy and U.S. Workers, 112th
Cong., 1st sess., March 31, 2011; U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration
Policy and Enforcement, STEM the Tide: Should America Try to Prevent an Exodus of Foreign Graduates of U.S.
Universities with Advanced Science Degrees?, 112th Cong., 1st sess., October 5, 2011; and, Mallie Jane Kim, “Chamber
of Commerce, Bloomberg Push Immigration Reform,” U.S. News & World Report, September 28, 2011.
13 Richard Freeman, “The Market for Scientists and Engineers,” NBER Reporter, no. 3 (Summer 2007); Rudy M.
Baum, “Unemployment Data Worst In 40 Years,” Chemical and Engineering News, March 21, 2012; U.S. Congress,
Senate Committee on the Judiciary, Subcommittee on Immigration, Refugees and Border Security, The Economic
Imperative for Enacting Immigration Reform, answers to questions for the record, witness Professor Ron Hira, 112th
Cong., 1st sess., July 26, 2011U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy
and Enforcement, H-1B Visas: Designing a Program To Meet the Needs of the U.S. Economy and U.S. Workers,
testimony of Professor Ron Hira, 112th Cong., 1st sess., March 31, 2011; and, U.S. Congress, House Committee on the
Judiciary, Subcommittee on Immigration Policy and Enforcement, STEM the Tide: Should America Try to Prevent an
Exodus of Foreign Graduates of U.S. Universities with Advanced Science Degrees, testimony of Dr. B. Lindsey
Lowell, 112th Cong., 1st sess., October 5, 2011.
14 U.S. General Accounting Office, H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect
Workers, GAO/HEHS-00-157, September 2000; U.S. General Accounting Office, H-1B Foreign Workers: Better
Tracking Needed to Help Determine H-1B Program’s Effects on U.S. Workforce, GAO-03-883, September 2003; and,
U.S. Government Accountability Office, H-1B Visa Program: Reforms are Needed to Minimize the Risks and Costs of
Current Program, GAO-11-26, January 14, 2011.
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workers through a staffing company; and (3) expansions that have increased the pool of H-1B
workers beyond the cap and lowered the bar for eligibility.15
A 2008 internal Department of Homeland Security (DHS) investigation of H-1B visa
adjudications found a 13.4% fraud rate as well as a 7.3% technical violation rate. Violations
reportedly ranged from document fraud to deliberate misstatements regarding job locations,
wages paid, and duties performed. The investigation also discovered that some petitioning
employers shifted the burden of paying various filing fees to foreign workers. A 2010 DHS
investigation found a 14% “not verified” rate, which U.S. Citizenship and Immigration Services
(USCIS) officials cited to suggest a reduced level of fraud in the H-1B program. 16 It was unclear,
however, how the 14% “not verified” rate compared with 13.4% fraud rate and the 7.3% technical
violation rate.
L-1 Visa Issues
The L intra-company transferee visa was established for companies that have offices abroad to
transfer key personnel freely within the organization. It is considered a visa category essential to
retaining and expanding international businesses in the United States. Some, however, have raised
concerns that intra-company transferees on the L visa may displace U.S. workers who had been
employed in those positions for these firms in the United States. Others express concern that the L
visa has become a substitute for the H-1B visa, noting that L employees are often comparable in
skills and occupations to H-1B workers, yet lack the labor market protections the law sets for
hiring H-1B workers. These concerns have been raised, in particular, with respect to certain
outsourcing and information technology firms that employ L workers as subcontractors within the
United States. A related concern is that an unchecked use of L visas will foster the transfer of
STEM and other high-skilled professional jobs overseas, as managers and specialists gain
experience in the United States before they transfer the operations abroad. After investigating the
L visa, the Department of Homeland Security Inspector General offered this assessment: “That so
many foreign workers seem to qualify as possessing specialized knowledge appears to have led to
the displacement of American workers, and to what is sometimes called the ‘body shop’
problem.”17
On the other hand, concern is being expressed about the increase in denials of L visas as well as
the increase in requests for additional evidence in order to adjudicate the L petition. Stuart
Anderson of the National Foundation for American Policy analyzed L-1B petitions for
transferring employees with specialized knowledge. Over a 10-year period from FY2004 to
FY2013, denials of L-1B petitions rose from 10% in FY2004 to 34% in FY2013. The same study
reported that requests for additional evidence went from 2% of L-1B petitions to 46% of L-1B
petitions. 18 Immigration attorney and former chief counsel at USCIS Lynden Melmed is quoted
15 U.S. Government Accountability Office, H-1B Visa Program: Multifaceted Challenges Warrant Re-examination of
Key Provisions, GAO-11-505T, March 31, 2011, p.2, http://www.gao.gov/assets/90/82421.pdf.
16 Office of Fraud Detection and National Security, H-1B Benefit Fraud and Compliance Assessment, U.S. Citizenship
and Immigration Services, September 2008; and, U.S. Congress, House Committee on the Judiciary, Subcommittee on
Immigration Policy and Enforcement, H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and
U.S. Workers, testimony of Donald Neufeld, USCIS Associate Director,112th Cong., 1st sess., March 31, 2011.
17 Office of the Inspector General, Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program, U.S.
Department of Homeland Security , OIG-06-22, January 2006, p. 9, http://www.oig.dhs.gov/assets/Mgmt/OIG_06-
22_Jan06.pdf.
18 Stuart Anderson, L-1 Denial Rates for High Skilled Foreign Nationals Continue to Increase, National Foundation for
(continued...)
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as saying, “(I)t is very difficult for companies to make business decisions when there is so much
uncertainty in the L-1 visa process. A company is going to be unwilling to invest in a
manufacturing facility in the U.S. if it does not know whether it can bring its own employees into
the country to ensure its success.”19
It is difficult to assess the merits of these concerns without a deeper understanding of the
temporary visas for professional, managerial, and skilled foreign workers. The following section
of this report delves into the purposes of the various visas, the statutory rules that govern
admission under these visas, and the trends in usage of these visas.
Managerial, Professional, and Skilled Workers
When it was enacted in 1952, the Immigration and Nationality Act (INA) authorized visas for
foreign nationals who would perform needed services because of their high educational
attainment, technical training, specialized experience, or exceptional ability. Today, there are
several temporary visa categories that enable employment-based temporary admissions for highly
skilled foreign workers. These visa categories are commonly referred to by the letter and numeral
that denote their subsection in the INA.20 They perform work that ranges from skilled labor to
management and professional positions to jobs requiring extraordinary ability in the sciences,
arts, education, business, or athletics.
Temporary Professional Specialty Worker: H-1B Visas
The INA makes H-1B nonimmigrant visas available for foreign workers in “specialty
occupations,” which the regulations define as requiring theoretical and practical application of a
body of highly specialized knowledge in a field of human endeavor including, but not limited to,
architecture, engineering, mathematics, physical sciences, social sciences, medicine and health,
education, law, accounting, business specialties, theology, and the arts, and requiring the
attainment of a bachelor’s degree or its equivalent as a minimum.21 Current law generally limits
annual H-1B admissions to 65,000, but most H-1B workers are exempted from the limits because
they are returning workers or they work for universities and nonprofit research facilities that are
exempt from the cap.22
Prospective employers of H-1B workers must submit a labor attestation to the Secretary of Labor
before they can file petitions with USCIS to bring in foreign workers. The H-1B labor attestation,
a three-page application form, is a statement of intent rather than a documentation of actions
(...continued)
American Policy, NFAP Policy Brief, March 2014.
19 Stuart Anderson, L-1 Denial Rates for High Skilled Foreign Nationals Continue to Increase, National Foundation for
American Policy, NFAP Policy Brief, March 2014. The Melmed quote is on page 3.
20 For a fuller discussion and analysis, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions,
by Ruth Ellen Wasem.
21 8 C.F.R. §214.2(h)(4). Law and regulations also specify that fashion models deemed “prominent” may enter on H-1B
visas.
22 For more on H-1B admissions, see CRS Report R42530, Immigration of Foreign Nationals with Science,
Technology, Engineering, and Mathematics (STEM) Degrees , by Ruth Ellen Wasem.
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taken. In the labor attestation for an H-1B worker, the employer must attest that the firm will pay
the nonimmigrant the greater of the actual wages paid to other employees in the same job or the
prevailing wages for that occupation, that the firm will provide working conditions for the
nonimmigrant that do not cause the working conditions of the other employees to be adversely
affected, and that there is no applicable strike or lockout. The firm must provide a copy of the
labor attestation to representatives of the bargaining unit or—if there is no bargaining
representative—post the labor attestation in conspicuous locations at the work site.23
H-1B Dependent Requirements
The law requires that employers defined as H-1B dependent (generally firms with at least 15% of
the workforce who are H-1B workers) meet additional labor market tests.24 These H-1B
dependent employers must also attest that they tried to recruit U.S. workers and that they have not
displaced U.S. workers in similar occupations within 90 days prior to or after the hiring of H-1B
workers. Additionally, the H-1B dependent employers must offer the H-1B workers compensation
packages (not just wages) that are comparable to U.S. workers.25
All prospective H-1B nonimmigrants must demonstrate to USCIS that they have the requisite
education and work experience for the posted positions. After DOL has approved the labor
attestation, USCIS processes the petition for the H-1B nonimmigrant (assuming other
immigration requirements are satisfied) for periods up to three years. A foreign national can stay a
maximum of six years on an H-1B visa.
H-1B Trends
The Immigration Act of 1990 set an annual cap of 65,000 H-1B workers, a level not reached in
the early years of the visa category. As the information technology industry began turning to H-
1B visas for temporary foreign workers, the limits of the cap were reached. Although Congress
enacted legislation in 1998 to increase the number of H-1B visas,26 that annual ceiling of 115,000
visas was reached months before FY1999 and FY2000 ended. Many in the business community,
notably in the information technology area, once more urged that the ceiling be raised. In 2000,
Congress enacted legislation to raise the annual ceiling to 195,000 for three years and to
permanently exempt those H-1B workers who are renewing their visas or who work for
universities and nonprofit research facilities from the 65,000 cap.27 During this temporary period,
the higher cap of 195,000 was not met because an increasing number of H-1B workers were now
exempt from the cap. A subsequent provision also annually exempts up to 20,000 aliens holding a
23 INA §212(n); 8 C.F.R. §214.2(h)(4). For a further discussion of labor attestations, see CRS Report RL33977,
Immigration of Foreign Workers: Labor Market Tests and Protections, by Ruth Ellen Wasem.
24 The American Competitiveness and Workforce Improvement Act (ACWIA) (Title IV of P.L. 105-277) defined H-1B
dependent employers as follows: firms having 25 or less employees, of whom at least 8 are H-1Bs; firms having 26-50
employees of whom at least 13 are H-1Bs; firms having at least 51 employees, 15% of whom are H-1Bs; excludes
those earning at least $60,000 or having masters degrees. CRS Report 98-531, Immigration: Nonimmigrant H-1B
Specialty Worker Issues and Legislation, by Ruth Ellen Wasem (archived).
25 INA §212(n).
26 Title IV of the FY1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (P.L. 105-277).
27 The American Competitiveness in the Twenty-First Century Act of 2000 (P.L. 106-313).
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master’s or higher degree from the numerical limit on H-1B visas.28 The impact of these
temporary increases in the cap, as well as the exemptions to the cap, is evident in Figure 2.
Figure 2. Total H-1B Petitions Approved, FY1994-FY2012
Source: CRS presentation of data from the DHS Office of Immigration Statistics (OIS) and its predecessor in
the Immigration and Naturalization Service.
Notes: FY2012 is the most recent year for which these data have been released. Congress increased the H-1B
cap to 115,000 for FY1999-FY2000 and to 195,000 for FY2001-FY2003. Not al H-1B workers with approved
petitions actually use the visa.
In FY2012,29 USCIS approved 257,538 H-1B professional specialty worker petitions, an increase
from 192,990 in FY2010 (during the recession). The high point was 288,000 H-1B professional
specialty worker petitions approved in FY2004. Although current law sets a numerical limit of
65,000 H-1B workers each year, only initial grants are counted under the cap. As Figure 2
displays, over the past decade more H-1B workers were approved outside of the numerical cap of
65,000 than under the cap. Not all H-1B workers with approved petitions actually use the visa.
Over the years, a noteworthy portion of H-1B beneficiaries have worked in STEM occupations.
In FY2012, the most recent year for which detailed data on H-1B beneficiaries (i.e., workers
renewing their visas as well as newly arriving workers) are available, 134,873 H-1B workers
were employed in computer-related occupations, and they made up 50% of all H-1B beneficiaries
that year. In terms of the broad trade group categories in which the H-1B beneficiaries were
employed in FY2012, the leading trade group was computer systems design, which employed
28 The Consolidated Appropriations Act of 2005 (P.L. 208-447).
29 FY2012 is the most recent year for which USCIS has published the annual detailed data on H-1B admissions
required by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), P.L. 105-277, div. C,
IV §416(c)(2), 112 Stat. 2681.
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over one-third (36%) of the H-1B workers. Colleges and universities employed 9% of the H-1B
beneficiaries. Management and scientific consulting were a distant third with 4%.30
Treaty Professional Specialty Workers: TN and E-3 Visas
There are two nonimmigrant visa categories quite similar to H-1B visas that are designated for
temporary professional workers from specific countries. These visas are based upon specific trade
agreements foreign nations have signed with the United States. Canadian and Mexican temporary
professional workers may enter according to terms set by the North American Free Trade
Agreement (NAFTA) on TN visas. The E-3 treaty professional visa is a temporary work visa
limited to citizens of Australia.31 Occupationally, they mirror the H-1B visa in that the foreign
worker on an E-3 visa or a TN visa must be employed in a specialty occupation. Employers of E-
3 workers are required to file a labor attestation. The TN visa is valid for one year and is
renewable.
Cultural Exchange Workers: J Visas32
The broadest category for cultural exchange is the J visa, which includes professors and research
scholars, students, foreign medical graduates, teachers, resort workers, camp counselors, and au
pairs who are participating in an approved exchange visitor program. The U.S. Department of
State’s Bureau of Educational and Cultural Affairs (BECA) is responsible for approving the
cultural exchange programs. J visa holders are admitted for the period of the program. Most
foreign nationals on J-1 visas are permitted to work as part of their cultural exchange program
participation. The J cultural exchange visas have expanded over time from visas issued for
educational, research, or scholarship purposes to visas issued for programs engaged in more
mundane tasks, such as child care, resort work, or camp counseling. Today, the J visas may be
issued to over a dozen subcategories of exchange visitors, many of whom work in the United
States.
“Conrad 30” J Visa Waiver
Currently, foreign medical graduates may enter the United States on J-1 visas in order to receive
graduate medical education and training. As is the case with most foreign nationals on J-1 visas,
foreign medical graduates must return to their home countries after completing their education or
training for at least two years before they can apply for certain other nonimmigrant visas or LPR
status, unless they are granted a waiver of the foreign residency requirement. States are permitted
to sponsor up to 30 waivers per state, per year on behalf of FMGs under a temporary program,
colloquially known as the Conrad 30 Program because it was originally sponsored by former
Senator Kent Conrad. The objective of the Conrad 30 Program is to encourage immigration of
30 U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers, Fiscal Year
2011 Annual Report, Department of Homeland Security, March 12, 2012.
31 §501 of P.L. 109-13, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005.
32 There is also a Q visa, which is a cultural exchange program. Its stated purpose is to provide practical training and
employment as well as to share the history, culture, and traditions of the United States and of the exchange visitor’s
home country.
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foreign physicians to medically underserved communities. GAO has reported that it has been a
major means of providing physicians to practice in underserved areas of the United States.33
Multinational Executive and Specialist Employees: L Visas
Intra-company transferees who are executive, managerial, or have specialized knowledge and are
employed with an international firm or corporation are admitted on the L visas. The prospective L
nonimmigrant must demonstrate that he or she meets the qualifications for the particular job as
well as the visa category. The foreign national must have been employed by the firm for at least
six months in the preceding three years in the capacity for which the transfer is sought. The
foreign national must be employed in an executive capacity, a managerial capacity, or have
specialized knowledge of the firm’s product to be eligible for the L visa. The INA does not
require firms who wish to bring L intra-company transfers into the United States to demonstrate
that U.S. workers will not be adversely affected in order to obtain a visa for the transferring
employee. The L visa is valid for five years and is renewable for a total of seven years.
International Investors and Traders: E Visas
Aliens who are treaty traders enter on E-1 visas, whereas those who are treaty investors enter on
E-2 visas. An E-1 treaty trader visa allows a foreign national to enter the United States for the
purpose of conducting “substantial trade” between the United States and the country of which the
person is a citizen. An E-2 treaty investor can be any person who comes to the United States to
develop and direct the operations of an enterprise in which he or she has invested, or is in the
process of investing a “substantial amount of capital.” Both these E-class visas require that a
treaty exist between the United States and the principal foreign national’s country of citizenship.34
Both the E-1 and E-2 visas are valid for two years and are renewable in two-year intervals.
Persons with Outstanding and Extraordinary Ability: O and P Visas
Persons with extraordinary ability in the sciences, the arts, education, business, or athletics can be
admitted on O visas. Generally, the O visa is reserved for the highest level of accomplishment and
covers a fairly broad set of occupations and endeavors, including athletics and entertainment.
Regulations implementing the O-1 visa define extraordinary ability in the field of science,
education, business, or athletics as Aa level of expertise indicating that the person is one of a small
percentage that has arisen to the very top of the field of endeavor.@35 The O visa is valid for up to
three years and is renewable for one year.
The P visa has a somewhat lower standard of achievement than the O visa, and it is restricted to a
narrower band of occupations and endeavors. The P visa is used by an alien who performs as an
artist, athlete, or entertainer (individually or as part of a group or team) at an internationally
recognized level of performance and who seeks to enter the United States temporarily and solely
33 U.S. Government Accountability Office, Foreign Physicians: Data on Use of J-1 Visa Waivers Needed to Better
Address Physician Shortages, GAO-07-52, November 30, 2006, http://www.gao.gov/products/GAO-07-52.
34 See CRS Report RL33844, Foreign Investor Visas: Policies and Issues.
35 8 C.F.R. '214.2(o)(3)(ii).
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for the purpose of performing in that capacity. The law allows individual athletes to stay in
intervals up to five years at a time, up to 10 years in total.
Religious Workers: R Visas
Foreign nationals working in religious vocations enter on R visas. The regulations define
religious occupation as “an activity which relates to a traditional religious function.” USCIS
further defined “religious denomination” to clarify that it applies to a religious group or
community of believers governed or administered under some form of common ecclesiastical
government. Under the regulations, the denomination must share a common creed or statement of
faith, some form of worship, a formal or informal code of doctrine and discipline, religious
services and ceremonies, established places of religious worship, religious congregations, or
comparable indicia of a bona fide religious denomination. The initial length of admission on an R
visa is for a period up to 30 months.36
Trends by Category of Worker
A more detailed presentation of visas issued to professional, managerial, and skilled foreign
workers by visa category for FY2013 is presented in Figure 3. As some, but not all, visa
categories differentiate between the principal or qualifying foreign national and derivative
immediate family that are permitted to accompany the foreign national, Figure 3 omits the
derivatives family members when possible. The total number of professional, managerial, and
skilled foreign worker visas issued abroad to principals was 690,619 in FY2013.37
36 U.S. Citizenship and Immigration Services, “Special Immigrant and Nonimmigrant Religious Workers,” 73 Federal
Register, 72276, Nov. 26, 2008.
37 Bureau of Consular Affairs, Report of the Visa Office 2013, U.S. Department of State, Table XVI, 2014.
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Figure 3. Visas Issued to Principals by Categories of Temporary Managerial,
Professional, and Skilled Employees in FY2013
Source: CRS presentation of data from the annual reports of the U.S. Department of State Office of Visa
Statistics.
Note: Derivative family members are omitted when they are entering through a separate visa category (e.g., H-
4, J-2, L-2, R-2).
Although the J-1 cultural exchange workers are the largest single category of temporary foreign
workers (45%), it is important to note that about one-third of these J-1 visas are issued to persons
engaged in Summer Work Travel (SWT), a program the State Department characterizes as
providing “foreign students with an opportunity to live and work in the United States during their
summer vacation from college or university to experience and to be exposed to the people and
way of life in the United States.”38 Many compare this use of the J-1 visas for SWT to the H-2
visas for seasonal and shortage guest workers.39
Over the past two decades, the numbers of visas issued to each of the categories of professional,
managerial, and skilled foreign worker have increased. The relative portions, however, have not
38 U.S. Department of State, “J-1 Visa Exchange Visitor Program, Summer Work Travel Program,” available at
http://j1visa.state.gov/programs/summer-work-travel (visited May 14, 2014).
39 For a more complete discussion, see CRS Report R42434, Immigration of Temporary Lower-Skilled Workers:
Current Policy and Related Issues, by Andorra Bruno.
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changed substantially, as Figure 4 makes clear. The professional workers (H-1Bs and TNs), the
cultural exchange workers (J-1), and the intra-company transferees (L-1) have driven most of the
growth over the past two decades. There has also been a slow but steady increase in foreign
workers deemed outstanding and extraordinary (O and P) over this same period. Only the
religious worker visa category has remained rather flat.
Figure 4. Trends in Temporary Managerial, Professional, and Skilled Employee Visas
Issued, FY1994–FY2013
Source: CRS presentation of data from the annual reports of the U.S. Department of State Office of Visa
Statistics.
Note: Derivative family members are omitted when they are entering through a separate visa category (e.g., H-
4, J-2, or L-2).
Optional Practical Training (OPT)
After completing their undergraduate or graduate studies, F-1 foreign students are permitted to
participate in employment known as Optional Practical Training (OPT), which is temporary
employment that is directly related to an F-1 student’s major area of study.40 Generally, an F-1
foreign student may work up to 12 months in OPT status. In 2008, DHS expanded the OPT work
period to 29 months for F-1 students in STEM fields. To qualify for the 17-month extension, F-1
students must have received STEM degrees included on the STEM Designated Degree Program
40 Foreign students on F visas are generally barred from off-campus employment.
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List, be employed by employers enrolled in E-Verify,41 and have received an initial grant of post-
completion OPT related to such a degree (i.e., already approved for 12 months in OPT).42
According to USCIS, the number of F-1 visa holders who are engaged in OPT has risen
substantially, from 28,497 in FY2008 to 123,328 in FY2013. OPT workers are now comparable
to the H-1B workers in terms of number of visas issued annually.
Figure 5. F-1 Foreign Students Approved for Optional Practical Training:
FY2008-FY2013
Source: CRS presentation of data from U.S. Citizenship and Immigration Services.
GAO recently released a report noting the potential for fraud and abuse of the OPT status. GAO
concluded that DHS’ Immigration and Customs Enforcement was unable to “fully ensure foreign
students working under optional practical training are maintaining their legal status in the United
States.”43
41 E-Verify is an electronic employment eligibility verification program that U.S. employers voluntarily use to confirm
the new hires’ employment authorization through Social Security Administration and, if necessary, DHS databases.
CRS Report R40446, Electronic Employment Eligibility Verification, by Andorra Bruno.
42 8 C.F.R. 214.2(f)(10).
43 U.S. Government Accountability Office, Student and Exchange Visitor Program: DHS Needs to Assess Risks and
Strenthen Oversigfht of Foreign Students with Employment Authorization, GAO-14-356, February 27, 2014, p. 18,
http://www.gao.gov/products/GAO-14-356.
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Taxation Rules and Exceptions
Federal Income Taxes
Foreign nationals in the United States are classified as resident or nonresident aliens for federal
income tax purposes. Resident aliens are generally subject to the same income tax obligations as
citizens of the United States. Temporary foreign workers may also be considered resident aliens if
they satisfy a “substantial presence” test based upon the number of days they have been in the
United States.44 If the foreign national is on an F, J, M, or Q visa45 working as a teacher, student,
or trainee, the days working in that capacity do not count toward substantial presence.46
Professional, managerial, and skilled foreign workers as a category are generally not exempt from
the individual mandate to have health care coverage under the Affordable Care Act.47
Social Security and Medicare Taxes
In terms of the Federal Insurance Contributions Act (FICA), most noncitizens employed in the
United States are subject to Social Security and Medicare taxes on wages in the same manner as
U.S. citizens.48 However, the Internal Revenue Code specifically excludes the employment of
foreign temporary agricultural workers, foreign students on F and M visas, and cultural exchange
visitors on J and Q visas from the definition of employment for the purposes of FICA.
Regulations implementing current FICA law for employment of students provide that when an
individual is working for a college or university and when the primary status of the individual is
as a student, rather than as an employee, then any work performed is excluded from employment
for purposes of FICA. The regulations clarify that full-time employees are not “students” for
purposes of the FICA exception. “If an employee is not a full-time employee, then whether the
employee qualifies as a student depends on all the relevant facts and circumstances. An individual
is a student if education, not employment, is the predominant aspect of the employee’s
relationship with the employer.”49 For example, medical residents working full-time are not
44 For a full discussion of the taxation of noncitizens, see CRS Report RS21732, Federal Taxation of Aliens Working in
the United States, by Erika K. Lunder.
45 Foreign students who wish to pursue a non-academic (e.g., vocational) course of study apply for an M visa rather
than the F visa. The Q visa is an employment-oriented cultural exchange program, and its stated purpose is to provide
practical training and employment as well as share history, culture, and traditions. CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem.
46 Internal Revenue Service, U.S. Tax Guide for Aliens, Publication 519, January 21, 2014, http://www.irs.gov/pub/irs-
pdf/p519.pdf, pp. 4-5.
47 For more information on the ACA individual mandate, see Internal Revenue Service , Affordable Care Act Tax
Provisions for Individuals and Families, May 15, 2014, http://www.irs.gov/uac/Affordable-Care-Act-Tax-Provisions-
for-Individuals-and-Families; and, CRS Report R41331, Individual Mandate Under ACA, by Annie L. Mach.
48 For a fuller discussion of whether they are eligible to receive benefits under these programs, see CRS Report
RL32004, Social Security Benefits for Noncitizens, by Dawn Nuschler and Alison Siskin.
49 Internal Revenue Service, Background Information on the Final Regulations and Revenue Procedure Providing
Guidance on the Student FICA Exception (Section 3121(b)(10) of the Internal Revenue Code), U.S. Department of
Treasury, December 21, 2004, http://www.irs.gov/pub/irs-tege/student_fica_-_background_info_7-28-05.pdf.
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considered students by the IRS and are subject to FICA payroll taxes.50 Generally, students who
are working off-campus are typically engaged in work that would be covered by FICA taxes.51
In terms of foreign students and cultural exchange visitors, current law on the definition of
employment exempts the following for the purposes of FICA:
Service which is performed by a nonresident alien individual for the period he is temporarily
present in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of
section 101(a)(15) of the Immigration and Nationality Act, as amended, and which is
performed to carry out the purpose specified in subparagraph (F), (J), (M), or (Q) as the case
may be.52
This blanket exemption for foreign nationals on F and J visas (as well as M and Q visas) is based
upon nonimmigrant status. It does not differentiate the type of employment or relationship to the
employer. To continue the example of medical residents, a foreign national who is on a J visa as a
medical resident working full-time is not subject to FICA payroll taxes. If a foreign national on an
F-1, J-1, M-1, or Q visa performs work that is not connected to the purpose for which he or she
was admitted to the United States, the employment is covered by Social Security, unless
otherwise specifically excluded by law.
According to the IRS, the following types of employment of F-1 and J-1 workers are exempt
from FICA taxes:
• On-campus student employment up to 20 hours a week (40 hours during summer
vacations).
• Off-campus student employment authorized by USCIS.
• OPT student employment on or off campus.
• Employment as professor, teacher, or researcher.
• Employment as a physician, au pair, or summer camp worker.53
Totalization Agreements that the United States has signed with selected foreign governments to
avoid double taxation of income for social security purposes also bear on whether the temporary
foreign workers are subject to FICA. 54
50 Mayo Foundation for Medical Education and Research et al. v. United States, 09–837 (2011).
51 20 C.F.R. 404.1001, 404.1012, and 404.1028.
52 Section 210(a)(19) of the Social Security Act.
53 Internal Revenue Service, Social Security/Medicare and Self-Employment Tax Liability of Foreign Students,
Scholars, Teachers, Researchers, and Trainees, December 4, 2013, http://www.irs.gov/Individuals/International-
Taxpayers/Foreign-Student-Liability-for-Social-Security-and-Medicare-Taxes.
54 More specifically, §3121(b) of the I.R.C. Wages may also be exempt from FICA pursuant to totalization agreements
authorized by section 233 of the Social Security Act. 26 U.S.C. §3101(c). For more information, see Internal Revenue
Service, Totalization Agreements, August 2, 2013, http://www.irs.gov/Individuals/International-Taxpayers/
Totalization-Agreements; and CRS Report RL32004, Social Security Benefits for Noncitizens, by Dawn Nuschler and
Alison Siskin.
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Opportunities for Legal Permanent Residence
Temporary professional visas have become an important gateway for high-skilled immigration to
the United States. 55 About half of all employment-based lawful permanent residents (LPRs) have
been working in the United States on temporary visas. More specifically, 46% of the foreign
nationals who became employment-based LPRs in the United States during the decade of 2000-
2009 had formerly held H-1B visas.56 Over this same time period, almost half (48.6%) of
employment-based principals who were deemed extraordinary/priority workers had been L
intracompany transferees. 57
More recently, the OPT status may provide the link for foreign students to become employment-
based LPRs. Many anecdotal accounts tell of foreign students who are hired by U.S. firms as they
are completing their programs. Employers may opt to hire them as OPT to extend their F-1 visas.
According to DHS: “This extension of the OPT period for STEM degree holders gives U.S.
employers two chances to recruit these highly desirable graduates through the H-1B process, as
the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal
years.”58 If the temporary foreign workers meet expectations, the employers may also petition for
them to become LPRs through one of the employment-based immigration categories.59
Over 90% of employment-based LPRs are adjusting from a temporary visa category to LPR
status within the United States, rather than newly arriving from abroad. Because the INA requires
most foreign nationals seeking to qualify for a nonimmigrant visa to demonstrate that they are not
coming to reside permanently, these adjustment of status statistics prompt further explanation on
the exceptions noted in the law.
Dual Intent and the §214(b) Presumption
Temporary workers who are H-1B or L visa holders are permitted to petition for a LPR visa at the
same time that they file for an H-1B or L visa, a policy exception known as dual-intent.60 (i.e.,
55 Not all companies, however, seek to convert H-1B employees to LPR status. Research by Professor Ron Hira of the
Rochester Institute of Technology indicates that many of the largest users of the H-1B visa sponsor few, if any, of their
H-1Bs for permanent residency. U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration,
Refugees and Border Security, The Economic Imperative for Enacting Immigration Reform, 112th Cong., 1st sess., July
26, 2011.
56 Ruth Ellen Wasem, “Global Competition for Talent: Parameters of and Trends in U.S. Economic Migration,” Center
for the History of the New America Conference on Immigration & Entrepreneurship, University of Maryland, MD,
September 14, 2012.
57 Ibid.
58 U.S. Citizenship and Immigration Services, Extension of Post-Completion Optional Practical Training (OPT) and F-
1 Status for Eligible Students under the H-1B Cap-Gap Regulations, U.S. Department of Homeland Security, April 2,
2010.
59 Not all companies, however, seek to convert H-1B employees to LPR status. Research by Professor Ron Hira of the
Rochester Institute of Technology indicates that many of the largest users of the H-1B visa sponsor few, if any, of their
H-1Bs for permanent residency. U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration,
Refugees and Border Security, The Economic Imperative for Enacting Immigration Reform, 112th Cong., 1st sess., July
26, 2011.
60 The other categories permitted dual intent are intracompany transfers employed with international firms who enter on
L visas and foreign nationals with V visas for family-related nonimmigrant. §214(b) of the INA; 8 U.S.C. §1184(b).
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generally, a foreign national applying for a temporary visa cannot also be seeking an LPR visa).
Specifically, §214(b) of the INA generally presumes that all aliens seeking admission to the
United States are coming to live permanently; as a result, most foreign nationals seeking to
qualify for a nonimmigrant visa must demonstrate that they are not coming to reside permanently.
Currently, the INA exempts foreign nationals seeking H-1 professional visas and L intra-company
transferee visas (as well as V accompanying family members) from the requirement that they
prove they are not coming to live permanently.61
Concluding Comments
The metaphor for U.S. policy on economic migration is a post at the border with two signs: one
reads “Help Wanted,” and the other reads “Keep Out.” This tension between competing interests
on foreign workers has long characterized American immigration policy. 62 Balancing these
priorities on the issues of temporary visas for professional, managerial, and skilled foreign
workers is no small feat, and is further complicated by a lack of consensus on the broader policy
debate over comprehensive immigration reform.
Author Contact Information
Ruth Ellen Wasem
Specialist in Immigration Policy
rwasem@crs.loc.gov, 7-7342
61 §214(b) of the INA; 8 U.S.C. §1184(b).
62 Ruth Ellen Wasem, “Global Competition for Talent: Parameters of and Trends in U.S. Economic Migration,” Center
for the History of the New America Conference on Immigration & Entrepreneurship, University of Maryland, MD,
September 14, 2012.
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