The H-1B Visa Season
Every year, on April 1st, the United States Citizenship and Immigration Services (USCIS) begins accepting applications for H-1B visas, better known as “work visas.” Generally (with certain exceptions), the H-1B visa is initially issued for three years, and can be extended for an additional three years. Starting this year, however, the USCIS will open a registration period from March 1 through March 20, 2020. During this timeframe, employers will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee. USCIS will not consider a petition to be properly filed unless it is based on a valid, selected registration.
Is getting an H-1B easy?
Not really. It has never been easy, and it has become even more difficult nowadays. Here’s why. First of all, there is a cap (limitation) on the number of H-1B visas made available every year by the USCIS. Only 85,000 of visas of this type can be issued annually to applicants from all over the world. To make matters worse, this number is further reduced for many applicants, since 20,000 out of 85,000 H-1Bs are reserved for those with advanced degrees (like master’s, for instance) obtained in the U.S., leaving only 65,000 for the rest of the applicants.
Are 85,000 visas per year sufficient to meet the needs of U.S. employers? Practice shows, they're not. In fact, in a growing economy, the applications received by the USCIS significantly exceed the number of available visas. For instance, in the past five years, USCIS received nearly 250,000 applications each year in the first week of April alone, three times more than the number of visas available.
To deal with such an excess demand, USCIS resorts to a computerized draft lottery that automatically decides which applications deserve to be evaluated (not approved), while the non-drafted ones are sent back without any consideration. In turn, the lucky drafted applicants get the right to have their application actually reviewed by USCIS on their merits.
The USCIS will only approve an H-1B application when specific criteria are met:
1 – An employer/employee relationship must be in place. An independent contractor relationship is not sufficient. USCIS will verify whether the employer retains control over the employee’s activities and whether the employee is incorporated into the employer’s organization.
2 – The beneficiary needs to be employed in the specialty occupation consistent with her or his educational and professional background. In other words, USCIS opens the door only to skilled foreigners. Not only does the applicant need to have a degree in the field in which she or he intends to work in, but the position itself, by its nature, must require at least a bachelor’s degree. USCIS generally relies on the U.S. Department of Labor to verify whether a particular occupation indeed requires at a minimum a bachelor’s degree. While such specialty occupations as attorneys, physicians, architects, etc. generally do not raise an issue with this qualification, professions such as marketing specialists, analysts, graphic designers and many others frequently do.
3 – The wages offered by the employer to the applicant must be at least average wages offered for similar jobs in the same geographic area as the proposed employment. USCIS utilizes the data from the Department of Labor to assess this crucial requirement, which eliminates ‘frivolous’ applications, thus rendering the H-1B work visa a benefit reserved for most skilled foreign
applicants.
The above is by far a very simplistic outline of the requirements of the H-1B visa. In reality, there are many more intricate details that are involved in a successful H-1B case.
In summary, the H-1B work visa is arguably one of the most desirable visas since it allows holders to work for the sponsoring employer without any significant restrictions – as is the case with other visas. On the other hand, as we have discussed, the H-1B visa is not easy to obtain. It is a visa reserved for those who are highly skilled, with an added twist – they must also be lucky and get drafted through the computerized lottery!
CONTACT OUR OFFICE TODAY: