Western countries don’t have the stomach to maintain “temporary” worker programs as such. Turkish workers in Germany were supposed to be temporary as well. In the U.S., H1B is still legally a “temporary (nonimmigrant)” but was turned into a gateway to permanent immigration by executive branch practice.
The H1 visa was created in 1952, and H1B was created in 1990. To this day, H1 visas are, in the actual statute, for temporary workers under 8 USC 1101: “H) an alien (i) [(a) Repealed. Pub. L. 106–95, § 2(c), Nov. 12, 1999, 113 Stat. 1316] (b) subject to section 1182(j)(2) of this title, who is coming temporarily to the United States to perform services…”
The INA has a provision that requires all temporary workers to have non-immigration intent. Moreover, it requires UCIS to presume immigrant intent if someone files an application for permanent residency, which would make the H1B deportable. The state department created “dual intent” decades ago as a legal fiction to allow H1 immigrants to skirt this provision of the law.
Congress accommodated that somewhat in 1990 and in 2000 (with AC21). But it’s all a hack on top of a kludge. The statue now exempts UCIS from being required to presume non-immigrant intent if someone files a permanent residency application. And AC21 allows extensions while a green card application is pending.
But nothing stops the administration from deciding a green card application constitutes immigration intent, or denying an extension. Congress has never changed the wording of the law—on paper it’s still a temporary worker program. A future administration could start treating it as such at any time.
