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  • Matthew Kolodziej

The Financial Year 2019 H-1B Cap: Tips and Strategies for Success

As the U.S. economy grows, the need for foreign skills and talent continues to increase. Proper planning and strategies, as detailed in this post, during the H-1B filing process can help employers obtain the highly-skilled workers needed for continued improvement.

The H-1B visa allows foreign nationals to work in the United States if they have a bachelor’s degree, or equivalent, and have a job offer from a U.S. company to work in a specialty occupation that requires them to have at least a bachelor’s to perform the job duties. Historically, the H-1B visa has played an important role in allowing American companies hire foreign professionals with advanced skills that are needed to grow and compete in a global economy and has been particularly important for the growth of tech, engineering, and other STEM (science, technology, engineering and math) industries in the United States.

The Challenge of the Cap-Subject H-1B

Although the H-1B is one of the most common types of work visas, it has become increasing difficult to obtain because it is subject to a very restrictive annual cap, and because U.S. Citizenship and Immigration Services (USCIS) has made it more difficult to get the applications approved after the cap selection process. The H-1B cap is limited to 65,000 visas, plus an additional 20,000 for applicants with U.S. master’s degrees. Last year, the FY 2018 annual cap was reached within five days after the cap filing period opened. 199,000 petitions were filed, or more than twice the number of visas available, requiring that a random selection (the H-1B lottery) be performed to determine which petitions would be accepted and adjudicated. It then took many months for applicants to be notified that they were selected, because the premium processing service, which allows applicants to pay extra for expedited processing, had been suspended. Although premium processing was restored in the fall, many selected applicants have had to wait six months or more to receive a final decision.

This year we anticipate that the FY 2019 cap will be exceeded again, and that USCIS will continue to make the adjudication process difficult. In April 2017 President Trump signed the Buy American and Hire American Executive Order that requires the federal government come up with ways to ensure that U.S. workers are prioritized over foreign nationals. The order specifically targets the H-1B visa program and directs USICS to ensure that H-1B visas are awarded to the most skilled and highest paid workers. Therefore, USCIS began issuing requests for additional evidence (“RFEs”) to H-1B visa applicants whose wages were on the lower end the Department of Labor (DOL) wage scale. They asked these applicants to provide additional documentation showing the job not only requires a bachelor’s degree, and but also that the job is truly “entry level”, and therefore does not require a higher wage. It has proven challenging to respond to this type of request, because it requires the applicant to argue two contradictory positions, that the job is complex enough to require a bachelor’s degree, but not so complex that it requires experience.

How to Improve Your Chances

We anticipate that the chances of obtaining an H-1B in the cap lottery will again be around 50%, depending on application volume. The improving economy and increased demand may drive an increase in volume, though there is some indication that the volume may decrease because employers have been discouraged from filing weak cases by the difficult adjudication process. Applicants with U.S. master’s degrees have a better chance to be selected in the lottery thanks to the additional visas dedicated to applicants with advanced degrees. Of course, if the applicant can find an employer that is a non-profit research organization, or otherwise qualifies as a cap-exempt employer, or if the applicant has obtained a cap-subject H-1B in the recent past, an application may be submitted at any time without having to apply for the cap when the application period opens on the first business day of April, or Monday, April 2nd, 2018.

Care must be taken when choosing an appropriate wage level and DOL job category, based on the position’s job duties and requirements, when preparing the H-1B visa application, to avoid receiving an RFE challenging low-wage H-1B applications. The DOL job category must clearly require a bachelor’s degree, which is indicated by the Job Zone, to qualify as an H-1B specialty occupation. The Job Zone is indicated in the job description on the DOL Foreign Labor Certification Data Center Online Wage Library at Job Zone 4 or higher indicates that the job requires at least a bachelor’s level education. Then, when describing the job duties in the application, care must be taken to indicate the appropriate level of responsibility and seniority. Any senior responsibilities that appear to be beyond the duties described in the DOL job description may indicate that a higher wage level is required. Employers should be aware that all applications using Level One wages will be closely scrutinized and may generate requests for evidence requiring the employer to justify the low wage.

Advanced Planning Is Essential

In the current legal environment, it is more important than ever for employers and employees who would like to get H-1B visas to plan ahead. If employers are considering hiring a student on a temporary work permit (curricular practical training, CPT, or post-graduation Optional Practical Training, OPT) it is best to apply for the H-1B cap as early and often as possible, so that if the student is not selected this year they may still have time on their work permit to apply again the following years. Note the employee does not have to activate the H-1B immediately and should continue to use their CPT and OPT as long as possible. Other options exist for more experienced employees with exceptional talents, such as the O-1 extraordinary ability visa or even the EB-1A extraordinary ability green card. Multinational companies may send employees abroad to work at a foreign affiliate, and then transfer them back after they gain managerial or specialized skills abroad, using the L-1 visa. Entrepreneurs who can raise venture capital or who work for a company interested in opening a new business in the U.S. may qualify for investor visas options.

As the U.S. economy continues to grow it will become more important than ever for lawyers to work closely with employers and their foreign national employees to ensure that the hiring needs of American companies are met so they can continue to grow and compete. Even as immigration applications become more challenging proper legal planning and strategy can help employers access the foreign skills and talent needed to create more jobs and economic growth for everyone and maintain our leading role in a global knowledge economy where highly-skilled workers are more desirable than ever.


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