The United States has long been attractive for skilled immigrants. The H-1B visa offers skilled workers from across the globe an opportunity to work and live in the U.S. It also benefits American companies that can attract and retain individuals with skills that are scarce among the domestic workforce. This visa is often the first step towards becoming a lawful permanent resident (also known as a green card) and ultimately a U.S. citizen, which is the eventual goal for many skilled immigrants. As a U.S. immigration attorney practicing for over a decade, I’ve had the pleasure of witnessing that dream become a reality for thousands of families. In this article, I provide an overview of the H-1B visa process –, past and present — because it has undergone significant changes in the last two years.
H-1B Visa Program
Congress enacted the H-1B visa program in 1990 to enable U.S. employers to hire temporary, foreign workers in specialty occupations. A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, doctor, lawyer, engineer, scientist, and architect.
As part of the process, the employer has to make certain attestations, including to pay the same or higher of the position’s prevailing wage, provide working conditions that will not adversely affect the conditions of workers similarly employed, that there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, that the employer has provided appropriate notice to bargaining representatives, or employees and that the employer has completed and made available a file for public examination.
H-1B Visa Cap
There is a limited number of H-1B visas made available each year. The current annual statutory cap is 85,000 of which 20,000 are reserved for foreign professionals who have a master’s degree or doctorate from a U.S. institution of higher learning. If the sponsoring employer is an institution of higher education, a nonprofit organization connected to an institute of higher education, or a government research organization, then they are exempt from the annual visa cap.
Historically, there have been more applicants than there are visas available. When that happens, the United States Citizenship and Immigration Services (USCIS) runs an electronic lottery (random selection process). For the fiscal year 2022, USCIS received 308,613 H-1B registrations and for the year before that, the USCIS received 274,237 H-1B registrations.
H-1B Cap Season
There is an H-1B cap season and it can be a very stressful time for employers and prospective candidates, but immigration firms as well! Before the new H-1B registration process, detailed below, USCIS would start accepting H-1B petitions starting April 1. Employers were required to submit H-1B petitions (paper-filings) without knowing whether a visa number would be available for their candidate. This meant incurring significant legal costs in the hopes of their prospective candidate being selected in the lottery. It also placed quite a burden on the limited number of the USCIS offices receiving these petitions. Weather and courier delivery issues also caused significant stress in some years, leading to the rejection of some petitions, which meant the employer had to wait another full calendar year to enter their candidate in the lottery.
Registration Process
To alleviate some of these issues, USCIS implemented a pre-registration process in 2020. Under the new system, employers submit their registrations electronically to be selected for the H-1B lottery before submitting full petitions. Before implementation of the registration process, if USCIS received sufficient petitions during the first five business days, the agency conducted a lottery to determine which employers’ petitions for H-1B workers would be processed. Under the current registration system, employers have a fourteen-day window in which they can submit registrations and a ninety-day window to file the petition if selected.
Since employers are only required to submit a petition if selected, it has considerably reduced the financial burden on the employer as they are only required to pay a $10 fee for each registration submitted. The registration includes limited information about the U.S. employer and the prospective employee, in contrast to the details USCIS required when the employer submits a full H-1B petition. USCIS has not placed any limit on the number of registrations an employer may file, however, the employer must attest that it intends to file an H-1B petition to the sponsor the prospective employee and cannot submit multiple registrations for the same prospective employee. The prospective employee can have more than one employer submit registrations on the employee’s behalf.
Employment
The initial term of the H-1B visa is three years and is renewable for up to three additional years. It can be further renewed if the employee is sponsored for a green card by a U.S company. The H-1B visa also offers the employee the flexibility to change employers.
Dependents of the H-1B employee
Fortunately, the H-4 visa program permits the spouse and children below 21 of the H-1B to remain in the U.S. With an H-4 visa, children can attend school in the U.S. However, under the H-4 visa, a spouse is not permitted to work, unless the H-1B employee has a lawful permanent residence application pending.
Employer Strategy
A long-term strategy for employers is essential for H-1B cap season to go smoothly. Human resource departments should be working ahead to identify potential H-1B candidates early, by the January of the year before the next lottery. Candidates can be new hires to the company but also currently employed foreign nationals that may be on other work authorizations like students on Optional Practical Training (OPT), which is a common immigration step before trying for an H-1B. It is also advisable to review the potential H-1B case with a seasoned immigration attorney to make sure the case is a viable one. It takes considerable cost and time, which should not be wasted on a case that might get rejected once it is adjudicated.
Conclusion
While the path to obtaining an H-1B visa can be daunting and challenging, the advantages are many for both American employers and foreign national employees. The H-1B visa program has played a vital role in the cultivation of the American workforce. For many of the country’s largest employers, especially in the field of technology and emerging industries, attracting foreign workers has helped foster a culture of diversity and inclusion, as well as allowed employers to continue to grow by meeting their workforce needs.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 9, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
