The H-1B visa classification is one of the programs that allows employers to hire guest workers temporarily. Beneficiaries of the H-1B visa classification are foreign nationals who work in specialty occupations. These are jobs that typically require the people who do them to have a higher education degree and specialized knowledge and experience.
Specialty occupations include fields such as architecture, engineering, physical sciences, social sciences, mathematics, medicine and healthcare, business and sales, accounting, education, law, theology, and the arts. President Obama’s STEM for All initiatives resulted in an immediate increase in the number of H-1B petitions, especially in STEM fields.
- Filings increased from 398,718 in FY 2016 to 403,675 in FY 2017
- Approvals increased from 345,262 in FY 2016 to 365,682 in FY 2017
- Almost 70% of H-1B petitions approved in FY 2017 were for computer-related jobs
Who qualifies for an H-1B visa?
H-1B temporary workers fall into three classifications:
- H-1B Specialty Occupations
- H-1B2 Department of Defense (DOD) Researcher and Development Project Worker
- H-1B3 Fashion Model
You might be scratching your head at this point, wondering how a visa program with nearly 70% of its guest workers in the computer science field came to include the world’s catwalking elite. According to a 2013 Inc.com report, this stems from Congress simply forgetting about fashion models when they recategorized employment-based visas. While the odds of being approved for an H-1B visa are much higher if you’re a global supermodel, it’s also less likely that you’re applying for one in the first place. In 2010, one of the last years that USCIS specifically included “Fashion Model” explicitly in its data analysis (rather than Miscellaneous, for example) only 478 petitions were filed on behalf of foreign workers. In order to be approved under the H-1B3 classification, the fashion model must be of “distinguished merit and ability.”
Most H-1B temporary workers fall under the specialty occupation or the researcher category. Both of these require that the employee meet one of the following criteria for higher education.
- Hold a U.S. bachelor’s (or higher) degree required by the specialty occupation
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s (or higher) degree required by the specialty occupation
- Hold an unrestricted state license, registration, or certification that allows them to fully practice the specialty occupation immediately in the state of intended employment
- Demonstrate education, training, and professional experience of increasing responsibility that is equal to a U.S. bachelor’s (or higher) degree
By far, foreign workers from India make up the bulk of workers in the H-1B program, especially in the IT industry.
Does the H-1B visa have yearly caps?
The H-1B visa program has a cap of 65,000 new visas each fiscal year, with an additional 20,000 allowed for those with a master’s degree or higher from a U.S. college or university. The U.S. also allows workers employed at certain organizations to be exempt from the caps:
- Institution of higher education, like a college or university
- Nonprofit entity affiliated with a higher education institution
- Nonprofit research organizations
- Government research organization
Trade agreements provide a special classification to foreign nationals from Chile and Singapore for employment of one-year increments. Under the H-1B1 classification, Chile is allotted 1,400 slots and Singapore 5,400.
What’s the process of applying for an H-1B visa?
The process of employing H-1B workers begins with the employer. DOD researcher and worker positions have a slightly different process and do not need to file a labor certification, but all others must
- Apply for labor certification. Employers must demonstrate to the Department of Labor (DOL) that their employment of a foreign worker meets the criteria of the position under the visa program, will not exploit foreign workers, and will not prevent U.S. workers from getting jobs.
- Petition for immigrant workers. If the labor certification is received, employers then petition the United States Immigration and Citizenship Services (USCIS) for permission to bring a non-immigrant worker to the U.S. along with the LCA (Labor Condition Application) certified by the DOL.
- Obtain visa and admission. Once the employer has received approval from USCIS, the employee then applies for a visa — unless one is not required, such as for Canadian workers — and then admission into the U.S. at a U.S. Customs and Border Patrol port of entry.
How long does it take to get an H-1B visa?
As with any immigration petition, the amount of time it takes to get an H-1B visa varies, especially when it comes to whether or not the labor certification is approved without delays. Once USCIS receives the application for a visa issued abroad or a change of status, the process takes about two and a half to four and a half months.
Employers subject to caps may not file their H-1B petition more than six months before the start of the job. All employers must make sure they and the employee they are wishing to hire have all documentation complete and ready to submit before beginning the process. Otherwise worthy petitions are often denied due to paperwork errors or insufficient evidence of the position’s qualifications or the employee’s education and experience.
Premium processing may speed up the process for employers, who can expect an approval, denial, notice of intent to deny, or request for evidence within 15 calendar days. If the employer receives a request for evidence, once a response is submitted to the USCIS, the USCIS has 15 calendar days to issue a decision.
How long does an H-1B visa last?
H-1B workers are eligible to remain in the U.S. under their visa for the duration of the job, as indicated on the employer’s petition, for up to three years. Requests for extensions may be filed before the three years is up, but visas under a petition for the same job and employer generally are not extended beyond six years total.
How can Farmer Law help H-1B visa applicants?
In part because of the number of positions exempt from the cap, the H-1B classification is the largest guest worker visa program in the U.S. today, with 308,613 H-1B registrations for fiscal year 2022 submitted by 37,000 petitioners during the initial registration period. While the cap remains the same, the number of petitions continues to increase, by almost 30,000 from 2016 to 2020.
Because of the complexity of the H-1B program, many employers do not realize their options when it comes to keeping their brightest talent, such as by applying for a change of status from F-1 to H-1B or from L-1B to H-1B. Additionally, larger organizations with a number of entities or affiliates may have additional options when it comes to leveraging the skills and knowledge of H-1B workers.
If you need more information about petitioning for H-1B workers, or if you are ready to start working with an experienced immigration attorney to secure your labor force strategically, Farmer Law is here to help. Schedule a consultation with our attorneys today.