The H-1B visa program is an integral part of U.S. immigration policy that continues to weave a tapestry of innovation and cooperation through long-term employment opportunities offered to highly skilled foreign nationals. Applicants who petition for employment as temporary guest workers under the H-1B visa program are able to forge a pathway to citizenship if desired.
The H-1B program is monitored and processed under the U.S. Department of Labor (DoL) and US Citizenship and Immigration Services (USCIS). The current cap limit for the 2021 fiscal year is set at 85,000; 65,000 for general admission and an additional 20,000 for applicants with a master’s degree or higher. Hopeful applicants are required to demonstrate their merit and ability through professional and educational credentials, in addition to relevant specialized experience.
H-1B Visa Types
As of the 2021 fiscal year, H-1B temporary workers may petition for temporary employment based on several different professional categories. Applicants petitioning through the H-1B program are distinguished based on merit and ability verified through meeting credential requirements and experiential criteria.
H-1B1 Specialty Occupations can include those whose professions and expertise fall under:
- Physical sciences
- Social sciences
- Computer sciences
- Medicine and healthcare
- Business and sales
- The Arts
H-1B2 Department of Defense (DOD) Researcher and Development Project Worker. Under this category, highly skilled applicants are selected to work within a research or development capacity under the United States Department of Defense (DOD). Only 100 H-1B2 visas are issued each fiscal year, making this program more competitive for potential applicants. Before receiving approval for H-1B2 status, the applicant is required to have been offered and accepted a qualified position. Applicants are eligible to apply for the H-1B2 status six months before the employer petitions on their behalf.
H-1B3 Fashion Model
Under the H-1B3 visa, a fashion model of “distinguished merit and ability” can seek long-term temporary employment.
- 5,400 Singapore Nationals
- 1,400 Chilean Nationals
This fact sheet provides general information concerning the temporary employment of foreign nationals from Chile and Singapore in specialty occupations under the H-1B1 program.
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H-1B Visa Statistics and Key Updates
As part of the U.S. Citizen Act of 2021, The Biden administration has introduced sweeping proposals to the H1-B visa program. For spouses of H-1B visa recipients, work authorization has been codified. Additionally, establishing higher wages for H-1B visa holders has been used to incentivize a reduction in the displacement of U.S. workers. Overall, these reforms have created more encouraging conduits that improve the employment verification progress under the H-1B program.
H-1B Visa Qualifiers
The majority of H-1B temporary workers fall under the specialty occupation or the researcher and developer category. Specialized professions that fall under these categories are required to meet one of the following criteria for higher education.
- Hold a bachelor’s degree or higher from an accredited university or college; a foreign equivalent is acceptable provided the credentials are upheld under evaluative scrutiny.
- 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 having the relative education, experience, and training necessary to perform the role of employment.
2021 Caps Under the H-1B Visa
The 85,000 annual H-1B limit is broken into two caps: the first threshold for the regular cap is limited to 65,000 skill and qualified applicants. The remaining 20,000 places are offered to H-1B visa holders with a master’s degree or higher from a U.S. university. These totals comprise 0.05% of the U.S. labor force, with about two-thirds of the program going towards computer science and engineering positions.
There following H-1B recipients are exempt from cap limits due to the demand for their specialized skill set and prestigious/esteemed position:
- Institution of higher education, like a college or university
- A nonprofit entity affiliated with a higher education institution
- Nonprofit research organizations
- Government research organization
H-1B Visa Application Process
The employer initiates the H-1B visa process. Applicants who fall under these categories must have their employer prepare to submit the following documents on their behalf. H-1B2 visa applicants are exempt from filing a labor certification.
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- Labor Condition Application (LCA), ETA-9035/9035E, must be certified by the Department of Labor (DOL). Obtaining an LCA involves the following basic steps:
- A wage rate is determined at a higher or prevailing rate based on the occupational classification.
- No sooner than 6 months before the beginning date of the period of employment, the employer must submit the LCA to the DoL electronically using the FLAG system.
- The DoL reviews the LCA submission and grants approval or denial of the form within 7 working days. Approved submissions are then able to proceed with obtaining an H-1B or H-1B1 visa through USCIS and the Department of State by filing a Form I-129, Petition for a Nonimmigrant Worker.
H-1B Visa Timeline
The H-1B visa process as it relates to immigration requires applicants to endure and conquer certain bureaucratic hurdles. It is not uncommon for applicants to experience setbacks and delays as documents make their way through the chain of command. For this reason, timelines for each applicant may vary depending on the status of their documents in the order they are received.
- 2-3 Weeks. First, the petitioner must successfully obtain permission to apply for the H-1B program via the labor certification. To do this, prospective employees are evaluated for H-1B sponsorship through the International Center. A list of documents must be submitted to the department to determine sponsorship.
- 2-4 Months. During this preparatory phase, information is gathered on behalf of the employee to evaluate eligibility for the petition and the filing process commences.
- 2-4 and a Half Months. Once the labor certification has been received by the USCIS, the process to change the status of the application for a visa issued to a foreign national employee takes about two and a half to four and a half months.
- 3-4 Weeks. 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.
Keep in mind that employers subject to caps may not file their H-1B petition more than six months before the start of the job. Both the employer and employee applicant must make sure that all documentation is complete and ready to submit before beginning the process. Paperwork errors or insufficient evidence of the position’s qualifications or the employee’s education and experience could result in a denied petition.
H-1B Visa Period of Validity
The H-1B visa program allows eligible workers to remain in the U.S. under the duration of their visa per the terms of the job, as indicated on the employer’s petition, for up to three years. Visa extensions may be requested on behalf of the employee before the 3-year expiration date; however, extensions are generally not extended beyond six years total. To find out more about how to switch employment under an H-1B visa sponsorer, follow the steps of a job change here.
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The H-1B visa program is one of the most robust immigration lotteries that is an intensive and laborious process. 308,613 hopeful applicants applied for the H-1B guest worker program for the 2022 fiscal year. That is more than 3 times the amount the current cap accommodates, with the list of petitioners growing on average of 30,000 per year since 2016.
Beyond avoiding documentation errors, employers may not be aware that potential employees can transfer their visa status under the H-1B program. Assimilating a task force of brightly talented workers is made possible by applying for a change of status from an F-1 visa or from L-1B to the H-1B program. Farmer Law is well versed and adept in conveying employment opportunities available to a number of companies and affiliates under the H-1B program.
The attorneys at Farmer Law are ready to use their expertise in employment immigration law to help employers strategically secure their labor force via the H-1B visa program. We would be glad to answer any inquiries you may have regarding the ins and outs of this process. Schedule a consultation with our attorneys today to find out how you can leverage the skills and knowledge of H-1B petitioners to strengthen your workforce. .
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