Employment H1B

H-1B

H-1B visas are used by US companies to employ college graduates who have degrees in specialized fields.

Employment H1B

Basics of the H-1B Visa

Filing an H-1B visa is a complex process. Regulations change frequently. Below is a brief overview of the process.

History

The H-1B visa was created in 1990 to allow US employers to hire foreign nationals to fill positions in engineering, computer science and scientific research. These fields were expanding rapidly, and the number of American students graduating from college was insufficient to fill all vacant positions. To keep the US competitive globally, the only option Congress had was to allow US companies to hire foreign workers.

Though the visa was supposed to be a temporary fix, the continuing explosive growth in these industries and the lesser number of US college STEM graduates have kept the need for H-1B workers high.

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Eligibility Criteria

To qualify for an H-1B visa:

  • The position must be a “specialty occupation”
  • Only US employers or their agents can file
  • Employer must have a genuine need for a new employee
  • The worker must have at least a bachelor’s degree related to the job
  • The salary must match what similar workers in that locality earn

Who Qualifies – The Definition of “Specialty Occupation”

The H-1B visa is for specialty occupations only. A specialty occupation is one where the worker needs a college-level education in a specialized field to perform the job.

The following positions always qualify for an H-1B visa:

  • Licensed professions – architects, engineers, medical doctors, lawyers, accountants
  • Professions requiring STEM degrees- Scientific research, technology, engineering, mathematics and other highly technical fields

These position may qualify for an H-1B visa:

  • Marketing and HR positions- One of the most litigated areas when practicing H-1B visa law is the definition of “specialty occupation”. The above examples clearly require technical knowledge. But there are a lot of fields that may require specialized knowledge, depending on the job responsibilities. These fields are usually in marketing or human resources. Some of these positions do qualify for H-1B visas, depending on how complex the job responsibilities are.
  • When the position is no longer a specialty occupation even though it qualified in the past- The definition of specialty occupation has also evolved with the times. Years ago, the IT industry only had one position: “computer programmer”. This position, of course, qualified for an H-1B visa then. Computer coding was a specialized skill at that time. Because high schoolers are proficient at writing basic computer code nowadays, the position of a computer programmer” is no longer a specialty occupation! However, an attorney can look at your position and may be able to qualify you under another position such as a software developer or systems analyst.
  • When the job title may not be specialized but the position is - In some cases, whether the job will qualify for an H-1B is a matter of degree. Careful analysis by a qualified attorney comes in handy in these situations. For example, a writer is definitely not a specialty occupation. A writer does not need a college degree to perform her job. But if the writer is creating technical documents, there are parts of her job for which she needs a technical college degree, and she can, therefore, be classified as a technical writer and will qualify for an H-1B.

How Many Qualify

At present, US employers can file first-time H-1B visas for 65,000 bachelor’s and 20,000 US master’s degree holders. First-time H-1B visas are for people who have not held an H-1B visa in the past 6 years.

Along with first-time H-1B workers, employers are allowed to extend the H-1B visas of workers who are already employed on H-1B visas.

The Annual Lottery

In recent years, well over 100,000 new H-1Bs were filed each year for this 65,000 + 20,000 quota. (For example, in April 2022 USCIS received over 400,000 registrations for FY 2023.) To decide who will get an H-1B, the USCIS runs a lottery each year.

Evolution of the Lottery

For a long time, the USCIS followed its “first filed” principle when accepting new H-1B petitions. Every April 1st, attorneys rushed to file petitions for the upcoming fiscal year. Petitions received first by the USCIS got accepted. Once the CAP was reached, the USCIS would reject and return the later filed petitions. In those years, the quota usually filled up in the first few days of April.

For the next few years, the USCIS collected all the filings in a given time period and then ran a lottery to decide which of the petitions would be accepted for processing.

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The Filing Process & Duration of the Visa

CAP registration. At this time, the USCIS required employers to register before they can file new H-1B petitions. Employers fill out a simple one page questionnaire online instead of sending in a complete petition by mail. The USCIS’s computer randomly picks 65,000 regular and 20,000 US Masters degree holders out of the registrants. The employers then have 3 months to submit their petitions.

  • Once the H-1B visa is approved, the foreign worker goes to the US consulate to get the visa issued. If the foreign worker is already in the US on a different visa, they can request a change of status to start work.
  • Duration of an H-1B visa:
    • Initial H-1B visas are issued for 3 years and can be extended for a total of 6-years.
    • If the worker changes to an H-1B visa from an L1 visa, their stay on the L1 visa is also counted in the total H-1B term.
    • If an I-140 (green card petition) has been approved, the H-1B can be extended beyond 6 years.
  • Family members live in the US on H4 visas. The spouse is allowed to file for a work permit if a I-140 (green card) has been approved for the H-1B worker.
  • H-1B visas are dual intent visas. This means that the holder can also file for a green card.
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How We Can Help

Problems with Hiring and Retaining H-1B Employees

It is pure luck to be able to hire a new H-1B worker through the lottery. This makes the process uncertain and stressful, both for the employer who needs the worker, and for the foreign worker who needs the job.

Even after the worker starts employment on the H-1B visa, there are other regulations that must be met. H-1B visas are very highly regulated both by the Department of Labor and the USCIS. The USCIS is concerned about making sure that the employers and visa holders meet all the legal requirements of the visa. The Department of Labor wants to ensure that hiring the foreign worker will not undercut the local US job seekers’ chances of getting hired. At the same time, they also want to be sure the foreign worker is not exploited because he is dependent on the US employer for his livelihood. This has resulted in a large body of regulations that the H-1B employer and employee must comply with.

Problems that H-1B Employers Face

After filing thousands of H-1B petitions for over 25 years, we find that the following are the most pressing concerns that our corporate clients face.

  • Uncertainty regarding whether your employee will get picked up in the lottery. If the employee is not picked up, the time spent and the cost of recruitment is lost. As the employer, you have to start the recruitment process all over again and hope you are able to find a US worker. This also stops you from planning your workflow since you don’t know if / when you will be able to onboard a much needed employee.
  • The cost to file the petition. The H-1B visa is the most expensive of all US visas. As a US employer, you must pay most of the fees to file the H-1B petition. If you have over 50 employees and half of them are on H or L visas, there is an additional fee on top of the already high fees!
  • Delay in starting new employees. As an employer running a for-profit business, you usually don’t want to file a petition for a worker, who, if picked up in the lottery, will not be able to start until months later. Smaller and medium-sized companies most times have an immediate need to hire.
  • Compliance with Regulations. The Department of Labor and the USCIS both monitor each aspect of the H-1B work. As an employer, you have to be mindful of treating the foreign worker the same as other workers, paying them the same salary and filing another H-1 if any of the job conditions change.
  • Ability to retain the foreign worker. And even when an H-1B worker in onboarded, as an employer, you are always concerned that their highly desirable skills make it likely they will be poached by the competition.

Problems that H-1B Foreign Workers Face

  • Getting through the lottery. The H-1B visa lottery means you can do everything right and still not get “picked” up. This puts your professional plans on hold indefinitely.
  • Issues facing foreign students. If you are a foreign student on a F-1, you know that you only have a limited amount of time to find a US employer and to start work before your student visa runs out. If you find an employer, start work while on a student work permit, you still need the H1B to be picked through the lottery. Without it, you will either have to continue to another expensive college degree which you don’t want, or have to return to your home country. Please click here to access our page dedicated to your issues.
  • Not treated the same. Even after you get a H-1B visa, as an H-1B employee, there are times when you may not be treated the same. You may end up doing more work for the same pay as your co-workers. Sometimes, you may be assigned to work on holidays because your colleagues assume that since you don’t have family in the US, you have nowhere to go for the holidays. It could be that you yourself may feel obligated to work long after everyone else has left for the day because you believe that the employer did you a favor by giving you the opportunity to live and work in the US.
  • Fewer opportunities to move. As an H-1B worker, you may face hurdles when looking for a new job. Employers sometimes withdraw job offers when they find out you will need H-1B visa sponsorship. They are wary of paying thousands in government fees and are also concerned about the regulatory requirements for hiring H-1B workers.
  • No break. As an H-1B worker, there is a constant pressure to maintain your status: You must have a specialized job at all times when you are in the US; you cannot switch jobs without needing the next employer to file another costly visa; you cannot take a break from work; or work at any position other than your specialized field. If you get fired, you only have a limited amount of time to look for another job.
  • Limit on spouses’ ability to work. As an H-1B worker, your spouse, even if highly qualified, is only allowed to work after your green card (I-140) is approved.
  • For Indian and Chinese nationals, green cards take many years, sometimes over 10 years. This adds to a lot of stress because you may have to postpone live events – marriage, buying a house, settling down – till you have more stability in your life.

The Solution

In this section, we have tried to provide a brief snapshot of some of the complexities of the H-1B visa process. The legal process is complicated. But also the reality for employers who hire H-1B workers because they really are unable to find qualified local talent, and for the foreign worker who faces their own challenges while on a H-1B. With over 25 years of experience, we have managed and found solutions to most H-1B scenarios.

We routinely help large companies file high volumes of H-1B visas as well as help smaller and medium-sized companies who need fewer employees, or need more individualized services. We routinely also represent employees.

Since we are familiar with H1B trends and what new laws are expected, we help our corporate clients plan their H1 workforce, starting from helping screen prospective candidates to helping provide a salary range for a particular job. We help our clients plan the timing of the H-1B visas and gaps in employment when the new employee’s student visa is lapsing.

Sometimes our larger clients want to outsource all their visas to us, or have us perform in-house audits. We help train HR staff on immigration compliance and help perform internal audits to meet with regulatory requirements. To make the process streamlined, our paralegals can directly collect documents from new hires, and our top-of-the-line case management system make the process efficient.

Sometimes our clients are filing for their first H-1B visa and need guidance on what their responsibilities are. Or, the position is non-technical, and we have to flush out the job description to make sure the position qualifies for an H-1B. We take pride in guiding and helping our clients grow their businesses or move seamlessly to a new job. We use our years of experience and high success rate to help you achieve the right visa each time.

Please visit our section below for details on the individual components and complexities of H-1B visas.

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