The H-1B Visa, Summarized
When it comes to visa programs, the H-1B is arguably the most popular and familiar one out there. It was designed to help foreign workers with special skills fill positions that US employers couldn’t find qualified US employees to perform.
Although the H-1B visa program allows thousands of workers into the country every year, it is capped, and businesses and employees must meet rigid qualifications. The rules and processes are complex, following in-depth legislation and scrutiny from the Department of Labor (DOL) and US Citizenship and Immigration Services (USCIS). But these laws and guidelines are in place to prevent fraudulent entry.
The initial H-1B visa was established in 1990 after Congress expanded the previous Immigration and Nationality Act of 1965. It isn’t intended to provide a path to citizenship, although it is a dual-intent document that allows beneficiaries to apply for a green card while in the US.
The visa holder is permitted to stay and work in the US for three years, with an optional three-year extension. However, this person must remain employed with the sponsoring employer or request and get approved for another qualifying employer for the visa to remain in a valid status.
Requirements and Processes for the H-1B Visa
As mentioned, the H-1B visa is for those professionals with special skills only. These skills allow them to fill the gaps in employment with businesses that provide specialty occupations, typically in STEM and art fields. The requirements include a bachelor’s degree or higher and/or significant experience in the industry for which the worker has applied. Common jobs associated with the H-1B visa include IT, healthcare, higher institution education, accounting, engineering, and other challenging occupations.
When an employer decides they will need to hire a foreign worker, they initiate the process by requesting approval through the Department of Labor. The DOL determines whether the job offer and employer meet the “specialty occupation” label and ensures that hiring a foreign worker will not harm the current US employment situation.
The employer files a Labor Condition Application (Form 9035E/9035) with the DOL and attests that they adhere to all requirements. Once they receive approval to move forward, the employer then files a Petition for a Nonimmigrant Worker (Form I-129) with USCIS. They include all supporting documents and fees. Many employers use an immigration attorney to complete the petition forms and minimize mistakes that cause denials and delays.
The details in these forms are basic, but even minor errors will result in rejections. Employers must include their legal company name and business EIN, address, authorized contact information, signatures, and other information, as well as signatures at designated spots.
They also provide similar details for the beneficiary they plan to sponsor and submit this information with the $460 petition filing fee. If the petition is chosen in the lottery (or approved for cap-exempt jobs that skip the lottery process), thorough documentation and applications begin.
H-1B Visa Lotteries
Because there is such high demand for the H-1B visa, USCIS instituted a cap of 65,000 new visas per fiscal year. Another 20,000 spaces are allotted for petitioners holding an advanced master’s or higher degree from a US institution.
New H-1B applicants applying for a non-cap-exempt position must go through a lottery system. This system ensures all chosen petitions are random and fair. However, if the applicant holds an advanced degree, they are placed into the first lottery, where 20,000 petitions are chosen. Should their petition not get picked in this selection process, they have a second chance in the second lottery, where 65,000 are chosen.
Foreign workers who wish to transfer to a new employer and are still within their three-year limit do not need to go through the lottery pool. Once they exceed the six-year maximum, they must return home, wait one year, then re-enter this system to obtain a new visa.
How the H-1B Visa Impacts the US Economy
The H-1B visa process has been a political debate for years, mostly due to the H-1B abuse by companies who try to hire foreign workers at lower pay. USCIS attempts to prevent this abuse by following up on employees after arriving in the US and ensuring they receive the equal or higher pay they were promised.
When the system is used correctly, bringing foreign national talent into the country is a boon to the US economy. The positive impact on the labor force allows companies to bring in workers to open up departments that provide jobs to others without the expertise necessary to lead a team. They drive innovation and boost the wages and employment rating for native-born workers.
Recent regulations introduced the opportunity for US workers to file complaints if they see abuse and steps to ensure more transparency with companies that hire foreign nationals. Employers must provide more details about the employment conditions and identify how many H-1B workers are in positions within their company.
These changes mitigate fraud and allow US nationals to suggest ways to improve the system or easily report violations.
What’s Next?
The political tension in the US directly impacts foreign workers and employers who wish to hire them. Because of the potential for abuse in the system, completing an H-1B visa petition is complex and deeply scrutinized. When you work with an immigration attorney like Visa2US, it saves you time and reduces the potential for mistakes.
The experts at Visa2US have helped countless employers and foreign workers obtain H-1B visa approvals. Take the guesswork and headache out of the process, and contact us today to see how we can help you take the next steps to obtain the H-1B visa petition.
