Except that while the term "dual intent" is a term of art which doesn't appear in the statute, the exception from the rule requiring no immigration intent for non-immigrant visas for visas in the H-1 category (from which exception the H-1B1 is now also excepted, putting it back into the no-immigration-intent category) was also part of the 1990 INA that created the H-1B. While there are categories where you might argue dual intent exists by administrative fiat rather than statute (IIRC, that's the practice with P nonimmigrant visas), its absolutely not the case with V, H-1 (except H-1B1), and L visas, which are explicitly statutorily excluded from the no-immigration-intent rule.
> Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa.
Possibly true between 1952 and 1990, but since 1990 the H-1 has been a visa which explicitly, under statute law allows for immigration intent. To the extent that there was an administrative usurpation involved, it hasn't been an issue since the middle of the George H. W. Bush Administration, and, moreover, its never been an issue for the H-1B, which was created at the same time as the explicit statutory dual intent rule.
As broken as the process is, the DOJ and commenters here clutching their pearls in the direction of excluding would-be permanent residents, by (for example) making false claims about how H1B was never intended to provide option value, are doing a xenophobia.
The H-1 and H-1B system was the result of a political compromise. Americans didn’t want to create a new flow of skilled immigrants. So what Congress created in 1952 was a program for skilled nonimmigrant temporary workers. It came to be used, by executive fiat, as a permanent immigration system. And in 1990, Congress papered over it a bit. But if you read the 1990 statute, it still says it’s for “nonimmigrant” “temporary” workers.
The H-1B was never intended to give workers the “option” of either staying permanently or going back home. You seem to be confused about what “dual intent” means. It’s not an option (disjunctive). It doesn’t mean you can choose to be a temporary nonimmigrant worker, or an immigrant who intends to seek permanent residency. It’s a conjunctive. It means that an immigrant has both the intention to not immigrate permanently, and the intention to immigrate permanently, at the same time. Why do you need both? Why does the “dual intent” provision of the law say that filing a permanent residency petition shall not create a presumption that the person intends to immigrate? Isn’t that a ridiculous thing to say? Obviously someone who files a residency petition intends to immigrate! The reason you need all of that logical contortion and hoop jumping is because the H-1B is still intended for nonimmigrant temporary workers.
It’s very simple. Why does the law require Facebook to advertise a job to US workers when it files a PERM certification? There is already an H-1B worker holding that job! If the H-1B visa is intended to give that person the “option” of permanent residency, why does Facebook have to try and find someone else for the job? And if Facebook actually advertised for the job properly and found an American worker, the H-1B worker would then not get permanent residency and have to go home. If the system intends to give the H-1B worker the “option” to be an immigrant, why would it be designed that way?
What the DOJ is doing is enforcing the original design of the immigration law. Part of that compromise was that temporary H-1B workers would only be allowed to get permanent residency if the employer can certify that it has looked and can’t find an American to do the job instead. The process isn’t supposed to be a formality where Facebook ensures that the H-1B worker gets to keep the job so he or she can get permanent residency.
> In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each. These U.S. workers were denied an opportunity to be considered for the jobs Facebook sought to channel to temporary visa holders, according to the lawsuit.
In practice, what happens is that an H-1B worker is working for Facebook and wants to obtain permanent residency. To do that, Facebook files a PERM labor certification, which requires it to advertise the position to Americans. But Facebook doesn't want to hire someone else to fill that position--it wants the H-1B worker to continue doing the job they're already doing.
If you think of H-1B as being for people who wanted to seek permanent residency all along, this makes little sense. Why require Facebook to advertise a job someone is already doing to other people just to sponsor that person's permanent residency? After all, this person may have been in the U.S. already for years, and is surely counting on being allowed to keep his or her job and stay in the country.
To make sense of this bizarre system, you have to realize that H-1B was not designed for people who intended to immigrate all along. It was designed to satisfy the demand for temporary workers with people who will mostly go home afterwards. The PERM advertising requirement exists to ensure that there really is no American who can do the job instead.
Assuming for the sake of argument that Facebook does face a shortage of skilled engineers, what it faces is a structural shortage. To deal with that structural shortage, it needs immigrants who intend to work in the U.S. permanently. But we don't have a good vehicle for skilled immigrants to say off the bat "I want to come to the U.S. to work, and I intend to stay in the U.S. permanently." H-1B wasn't designed for that. It was designed to fill temporary shortages.
When it comes to "fixing" the H-1B system, you can't overlook the underlying political compromise. Americans don't support creating a permanent flow of skilled immigrants. (At least, not without concessions in other areas, such as curbing illegal immigration.) It seems obvious to "fix" H-1B by just getting rid of things like the PERM advertising requirement. But if you do that, you're subverting the political compromise that led to H-1B in the first place.
“Dual intent” is the “administrative fiat” I was talking about. Both the 1952 and 1990 INA define an H-1 worker as an alien “who is coming temporarily to the United States to perform services.” Non-immigrant intent is a prerequisite for the category. Since the 1952 Act, the INS adopted a fiction of dual intent to turn the H-1 visa into a de-facto immigration visa. However, the State Department didn’t recognize dual intent. When an H1 visa holder filed an immigration petition, the State Department treated that as signaling intent to immigrate, in violation of the H1 terms. When the visa holder travelled, they risked not being allowed back in the country, causing significant hardship.
With the INS having backed Congress into a corner, the 1990 INA included a narrow solution to eliminate the specific hardship and maintain the status quo. But it didn’t change the fundamental nature of the H1 visa as a temporary immigration visa. It’s still a temporary non-immigrant visa in the statute, as distinguished from immigrant visas which are also in the statute. The committee’s legislative history for the 1990 INA makes clear that Congress was just kicking the can down the road and alleviating that specific hardship without reconceptualizing H-1B as an immigrant visa:
> The difficulties encountered by those seeking temporary admission who have also expressed a desire to immigrate at some time in the future have caused severe personal hardship as well as inhibited frequent travel to the United States for business purposes. This has been particularly onerous for the beneficiaries of H and L visas. The Committee [on the Judiciary] sees no useful purpose in denying temporary entry to the United States for business purposes because of an inability to show that a residence abroad will not be abandoned. Such presumption of immigrant intent in particular circumstances creates purposeless, but often insurmountable, barriers for the prospective employee and the employer. For all categories of nonimmigrant visas (including the H and L), the bill provides that the filing of an immigrant petition cannot be a factor in determining whether an alien intends to abandon a foreign residence. The Committee notes, however, that the consular officers may rely on other evidence indicating the possibility of overstaying a visa, such as records of past visits to the United States.
If the H1-B was “meant as a path to permanent residence” the whole “dual intent” thing would be meaningless. The only reason you need “dual intent” is because the law still requires H1-B holders to have non-immigrant intent. It’s a kludge to deal with the fact that Congress can’t actually muster the votes to create a real skilled immigration system.