The H-1B Visa Season

Photograph of a U.S. Department of Homeland Security logo.

April 1st. This is the date booked on many agendas of foreigners living in the US. The reason is not a playful ‘April Fools’, as foreigners living in the US (and especially in New York) do not have a lot of time left for joking around. Every year, on April 1st, the United States Citizenship and Immigration Services (USCIS) starts accepting H-1B visa applications, which is the much coveted work visa (actually, there are also other visas that enable holders to work when specific criteria are met, but the H-1B is considered the most important work visa because it establishes a traditional employer/employee professional relationship).

After receiving an H-1B application, USCIS takes some time (typically a few weeks but it could even take more than a month) to evaluate an application. Even after obtaining approval, the beneficiary cannot start working prior to October 1st. The H-1B visa lasts three years and can be extended for additional three years.

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 on the number of H-1B visas made available every year by USCIS: 85,000. More precisely, the number is even smaller for many foreigners: 20,000 out of 85,000 H-1Bs are reserved for those with advanced degrees obtained in the US, while 65,000 are open to others. Are 85,000 visas per year sufficient to meet the needs of US employers? Absolutely not. In fact, in a growing economy, the applications received by USCIS far exceed the number of available visas. For instance, in 2015, USCIS received in excess of 230,000 applications 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 other words, in 2015, almost 150,000 candidates were left without a remedy, despite the fact that a US employer had offered each of them a position. That’s not cool! The job market is still very strong this first part of 2016. More than 200,000 applications are expected this year as well. There is no doubt that there will be a new lottery for the lucky. In Washington, there have been discussions by the Politicians to raise the cap. In fact, similar provisions were included in the immigration bill that was blocked in Congress a few years ago. The fact is, in the election year, politicians would rather not deal with a reform that may be construed by populists as anti-American. Perhaps only Frank Underwood could break the deadlock…

And what do the drafted applicants get? Very little. The simple right to have the application evaluated. In fact, 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 in the employer’s organization for tax purposes.

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. Having a degree in the field of the offered position usually satisfies this requirement. Those who do not possess a degree could also qualify, however, USCIS has more stringent requirements in such cases: a professional license or a lengthy previous work experience in the field (three years of work experience is considered to be equivalent to one academic year) will deem an applicant eligible.

3 – The wages offered by the employer to the applicant must be at least average wages offered for similar jobs in the US. 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 foreigners.

In summary, the H-1B work visa is arguably one of the most desirable visas since it allows holders to work without any significant restrictions – as is the case with other visas – and offers the ability to easily change employers. On the other hand, as we have discussed, the H-1B visa is not easily obtainable. It is a visa reserved for those who are highly skilled with an added twist – they must also be lucky!

 

Michele Cea, Esq.         mcea@cebalaw.com

 

The H-1B Visa Season