It’s H-1B Visa Season: What Employers and Employees Need To Know About the New Rules

April 1st marks the beginning of the application period for the H-1B visa program. On that day, the U.S. Citizenship and Immigration Service (USCIS) opens a total of 85,000 H-1B visas for highly skilled foreign professionals.

Graduating international students and foreign professional alike view H-1B visas as a gateway to citizenship, career advancement, and building a new life in America.  However, earlier this year the U.S. introduced policy changes impacting the H-1B visa application process and its accessibility. So if you or your employer are looking to obtain an H-1B visa, now is the time to prioritize your application. Here’s what you need to know.

What is an H-1B Visa?

An H-1B visa is a temporary visa category that, if granted, lets U.S. employers hire foreign workers in specialty occupations that require advanced degrees or specialized knowledge. Although the types of “specialized knowledge” vary, the visas are typically approved in fields such as mathematics, engineering, technology, finance, medicine, or computer science.

Although the total allocation for the H-1B visa program is 85,000 beneficiaries, the government allocates 65,000 visas for foreign individuals with bachelor’s degrees or higher. USCIS reserves the remaining 20,000 for individuals who graduate with a master’s degrees or higher from a U.S. institution.

How Much Does This Visa Cost?

In total, the fees for an H-1B visa application can vary anywhere from $1600 to $7400 depending on the size of the company. US law strictly requires that the employer absorb all the costs and fees associated with the H-1B visa filing. USCIS takes this requirement very seriously and conducts employer audits to ensure compliance with this requirement.

How Long Does An H-1B Visa Last?

Generally, foreign employees with H-1B visas may remain in the U.S. for work for a total of 3 years. However, USCIS will grant extensions for a maximum of 6 years. To qualify for the program, applicants must submit their paperwork during the application period of the year before the start of their employment. So applications submitted in April 2019 will be valid for the fiscal year of 2020 beginning October 1, 2019.

What Is The Visa Lottery?

Because of the limited number of visas available, USCIS has consistently reached its 85,000 allocation limit, or cap, within the first week of the application period every year since 2014. Once this occurs, USCIS conducts a lottery to determine which employer’s petitions it will process. During the lottery, USCIS selects H-1B beneficiaries randomly according to specific rules. Because of this, it is essential that applicants submit their paperwork as soon as the application period begins on April 1st.

How Do You Apply?

An employer may submit an H-1B visa application for any foreign worker who meets the educational requirements. However, there are some pre-application requirements. First, an employer must attest, via the Labor Condition Application (LCA), that the employment of an H-1B foreign worker will not adversely impact the conditions or wages of its U.S. employees. Then, the employer must notify its existing workers of its intention to hire a foreign employee.

Once the employer meets these pre-application conditions, it can then submit the H-1B visa application and accompany documents for approval. Generally, the accompanying materials include degree certificates, transcripts, a job description, and other corporate records.

What Are Recent Changes to the Program?

On January 30, 2019, the Department of Homeland Security announced changes to the visa lottery to increase the chances of visas going to foreign workers with advanced degrees from U.S. institutions. Under the old selection process, if USCIS reached its 85,000 visa cap within the first 5 days of the application period, USCIS instituted lottery procedures. This meant that USCIS randomly selected eligible beneficiaries with masters degrees or higher from U.S. institutions first up to the 20,000 visa cap.  Once it reached that limit, USCIS would then select the remaining 65,000 beneficiaries from the remaining pool of applicants which included those not selected in the advanced degree lottery.

The new rules reverse this process.  Now, USCIS will randomly select registrations submitted on behalf of all beneficiaries first, including those eligible for the advanced degree selection.  Once USCIS has reached its 65,000 visa cap for the regular applications, it will then begin the selection process for the 20,000 advanced degree recipients. The agency estimates that this change will increase the number of selected beneficiaries with advanced degrees from U.S. institutions by 16%.

How Do These Rules Affect You?

In addition to the recent changes, the federal government has proposed additional modifications to the H-1B program that will likely affect future applicants. To stay ahead of the curve, here are some practical tips:

  • Start Early. To even be considered for an H-1B visa today, employers must be prepared to submit their visa petitions materials as soon as the application period begins. Therefore it’s essential that all parties work together to gather the necessary documents and complete the pre-application procedures before April 1st.
  • Start the LCA Even Earlier. The LCA is a whole process unto itself requiring information on the prevailing wage, working conditions, and any labor disputes. Although the government reviews LCAs within 7 working days, employers must correct and resubmit applications if there are errors. So applicants should complete their LCA as soon as possible.
  • Update Your VIBE. The VIBE, or Validation Instrument for Business Enterprises, is a program that helps streamline the H-1B petition process by allowing USCIS to retrieve commercially available information about an employer. Although this step isn’t required, it can go a long way in facilitating an H-1B application.
  • Get Help. Navigating the H-1B program rules is not easy, and given the expense, it’s not something you want to do along. Widerman Malek is here to help.

Contact immigration attorney Demian Serianni today to get started with the H-1B process for your employees.

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