Although the H-1B visa is one of the most common types of work visas, it has become increasingly hard to obtain, especially with its restrictive annual cap. It is important that foreign nationals are aware of certain criteria that may affect their H-1B application, including potential problems and strategies.
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 to 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 increasingly difficult to obtain because it is subject to a restrictive annual cap, and because U.S. Citizenship and Immigration Services (USCIS) has made obtaining approval more difficult 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. This year, the FY 2019 annual cap was reached within five days after the cap filing period opened. More than 190,000 petitions were filed, or more than twice the number of visas available, requiring a random selection (the H-1B lottery) 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, was suspended. Many applications are still pending and premium processing remains unavailable.
This coming year we anticipate that the FY 2020 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 to come up with ways to ensure that U.S. workers are prioritized over foreign national employees. Last year (FY 2018) this meant that H-1B petitions using lower wage levels were targeted for extra scrutiny. This year (FY 2019) USCIS has been focusing less on low wages and more on the complexity of the job duties, the bachelor’s degree requirement, and the availability of professional-level work, among other issues. This means that applications must be prepared with attention to an ever-widening range of issues as USCIS focuses on new areas of scrutiny.
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 applications. 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. 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 April 1st, 2019. Based on our experience these are some of the areas that USCIS may focus on when adjudicating H-1B applications next year.
A specialty occupation is a job that requires at least a bachelor’s-level degree in a specialized area to perform the duties. A major in a broad subject area, such as liberal arts or business, is generally not specialized enough. This past year USCIS has been focusing more on whether the job is complex enough to require a specific bachelor’s degree. Therefore, care must be taken when choosing an appropriate Department of Labor (DOL) job category, based on the position’s duties and requirements, when preparing the H-1B visa application. The DOL job category requires 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 in the DOL Foreign Labor Certification Data Center Online Wage Library at www.flcdatacenter.com. Job Zone 4 or higher generally 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 explain why the applicant’s university degree is necessary to perform the job duties. It may also be helpful to provide evidence that the employer has hired people for this position previously who have this particular degree and cite examples of complex work product that requires the expertise provided by such university-level studies.
Availability of Specialty-Occupation Work:
USCIS has recently been focusing on whether the sponsoring company’s business and clientele justify the need for a highly-skilled and specialized H-1B worker. Smaller companies with low annual revenue and smaller payrolls seem to be targeted. The H-1B applicant may want to provide contracts with clients, statements of work, invoices, company brochures, company tax returns and payroll records to show the scope and sophistication of the company’s services and the need for the H-1B worker’s skills. If the sponsoring company does not have many employees USCIS may also want to see evidence that the H-1B applicant will not be required to perform non-specialty occupation duties, such as basic administrative tasks, and will therefore dedicate the majority of their time to complex duties that require a college-level education.
Maintenance of Status:
Another new area of scrutiny is the H-1B applicant’s maintenance of status in the U.S. The applicant should be careful to comply with their current visa and document that compliance. Students in F-1 status should maintain a full course of study and only work when authorized. They should speak to their school Designated School Official (DSO) whenever they have questions about complying with their student visa. They should also ensure they can document that they have paid tuition and attended classes. If the applicant may not be able to show maintenance of status it may be a good idea to file the H-1B with “consular notification.” This type of application will not change the applicant’s status in the U.S. and does not require maintenance of status. Instead it requires that the applicant take the H-1B approval notice to a U.S. consulate abroad to obtain a visa stamp in order to reenter the U.S. as an H-1B holder.
Advanced Planning Is Essential
The issues above are just a sampling of potential problem areas in H-1B applications, which include many other issues such as low wages, unusual job descriptions, and off-site work locations. Therefore, it is more important than ever to plan ahead and consider all issues before applying. If employers are considering hiring students with work permits (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 first application doesn’t succeed they may still have time on their work permit to apply again in later years. Note that the employee does not have to activate the H-1B immediately and should continue to use their CPT and OPT for as long as possible. Other options exist for more experienced employees with exceptional talents, such as the O-1 extraordinary ability visa or even a green card based on labor certification (PERM). Multinational companies may send employees to work at a foreign affiliate and then transfer them back to the U.S. after they gain experience abroad. 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 visa 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 that they can continue to grow and compete. As immigration applications become more challenging proper planning and strategy can help employers access the foreign 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.
To learn more about how we can assist with your H-1B petition or business, you can schedule a free consultation online or call 347-897-6199 to make an appointment.
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