The Challenge Of H-1B Visas
In our Miami Immigration Law practice, we are often asked the question, “How can I obtain a work visa?” Officially, there is no such thing as a basic visa to work in the US.
Each visa type is for a specific purpose, specifically studying (F-1, M-1, J-1), tourism (B-2), to get married (K-1) or employment within certain limitations (E-1, E-2, L-1). H-1B is one of the visas that allows for employment, and it’s probably the closest thing we have to a “work visa.”
It enables a person to be an employee of a sponsoring organization to execute duties that require “specialized knowledge.” That means that the duties of the job offered to the H-1B employee must require someone with a Bachelor’s degree or some equivalent education and/or work experience, and the person being sponsored must have that education and/or practical experience.
H-1Bs Are Limited
Regrettably, H-1Bs are frustratingly limited. Under current law, we only have 85,000 new H-1Bs available each year for companies to request from the Department of Homeland Security, United States Citizenship and Immigration Services agency (USCIS).
Furthermore, a person seeking an H-1B cannot obtain one without a job offer and company sponsorship.
Finally, the company must establish to USCIS’s satisfaction that the job offered is in fact a “specialty occupation” and that the person will be a bona fide employee of the sponsoring company. This article will address each of these challenges with H-1B.
85,000 H-1B Available Each Year
The yearly limit of 85,000 H-1Bs is woefully insufficient to meet the demand US employers have for foreign workers. For fiscal year 2017, USCIS reported to have received over 236,000 applications between April 1 and April 7, 2016 for an October 1, 2016 start date– the start of the US government’s fiscal year 2017.
In other words, the entire 85,000 of H-1Bs for 2017 was met in one week. USCIS has opted to allocate those available 85,000 H-1Bs through a two-phase, completely random lottery system.
The first phase only applies to H-1B hopefuls who have obtained a Master’s degree from a US institution, and it is 20,000 of the total 85,000 H-1Bs.
The second phase includes everyone else who has applied, plus those with Master’s degrees from the US who were not selected in the first round.
Exceptions To The Cap
There are exceptions to the yearly H-1B limitations. Institutions and organizations specialized in education or non-profit research may qualify for H-1Bs without having to take an H-1B visa from the annual limit, or the “cap” as it’s called.
However, an H-1B worker cannot switch from this category of H-1B into a cap-subject employment situation without attaining an H-1B through the lottery.
No Self-Sponsored H-1Bs
An individual cannot self-sponsor for an H-1B. For someone hoping to work in the US as an H-1B, he or she must first be given a job offer by a US employer. When a company wants someone requiring H-1B sponsorship to work for it, the company must file a petition on that potential employee’s behalf and pay a portion of the government fees– which can be hefty.
An individual cannot make an application for an H-1B and afterwards go find a job to apply it.
The company hoping to employ an H-1B worker must file it for that identified potential employee.
Position Must Be For A Specialty Occupation
For a company to have a chance at approval on an H-1B petition, the job presented must be for a “specialty occupation.” In basic terms, the job offered must require a Bachelor’s degree in a particular field for successful completion of the job duties.
The review is done from an industry point of view instead of a company-specific one, and the job title is less important to the analysis than the professional responsibilities.
If in the industry a Bachelor’s degree is normally not required for the specific job duties described in the H-1B petition, because the company requires one doesn’t always mean USCIS will consider the job to be a “specialty occupation.” Work experience can in some situations replace the need for education.
For example, if someone has a 3-year diploma for post-high school education, and 3 years of work experience in a specific field, USCIS may consider that to be equivalent to a Bachelor’s degree for H-1B purposes. The proportion is 3 years work experience to 1 year of college education.
Must Have A Bona Fide Employee/Employer Relationship
The company sponsor for H-1B purposes must be a bona fide employer to the person being sponsored for H-1B to perform the specific job duties outlined in the H-1B petition.
This requirement makes certain situations, such as talent recruitment companies wanting to place H-1B workers at “client” sites or company owners themselves considering trying for an H-1B for self-employment from succeeding with H-1B petitions.
There are ways to potential make these situations work for H-1B, but it is very tough.
H-1B visas have significant advantages, but getting one can be complex. USCIS does not consider merit in issuing the H-1Bs available every year. The selection process is completely random. The annual limit is far lower than the need. A man or woman seeking an H-1B must have a sponsoring company.
Self-employment and client placement situations are not expected to succeed. No law practice or lawyer can ethically claim to increase your likelihood for success in a random lottery process.
In spite of these challenges, we at Davis & Associates are successful at processing many H-1B petitions annually, and would be happy to go over any questions or concerns concerning H-1B visas and the process.