17 Startling Facts about H1-B, Global Employment and Foreign National Workers

• Failure to correctly pay H-1B filing fees also hurts employers:
  • An H-1B petition requires a submission of three filing fees.
  • Additional fees apply for employers with more than 50 or and a workforce of more than 50% H-1B, L-1, or L-1B status.
  • Each fee must be paid separately, or employers can incur fines.
• The Department of Labor is boosting their H-1B visa audits. 
• U.S. Citizenship and Immigration Services (USCIS) has also expanded their H-1B compliance site visits and typically show up unannounced at the work location listed on the H-1B petition. Failure to properly maintain LCAs on site can result in penalties.
• Employers that need to relocate H-1B employees to a new worksite, due to the impact of COVID-19, may need to file a new LCA with the Department of Labor, plus an amended I-129 petition with USCIS.
• Employers must also update or file an entirely new LCA if an employee experiences significant change in wage or job duties. Mergers and acquisitions may also require the filing of brand new or amended LCAs.
• LCA and H-1B violations are expensive for companies, and can range from $1,000 to $35,000 per violation. In 2020, the maximum civil monetary penalty was raised to $54,921.
• An IT consulting company was fined $48,193 by the DOL’s Wage & Hour Division for H-1B Visa Program violations.
• Employers in violation of H-1B may also be banned from employing H-1B workers for one to three years.

What is an H1-B Visa?

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to temporarily hire foreign workers in specialty occupations. It has become one of the most sought-after visas for skilled professionals from around the world.

So, what exactly is an H-1B visa? In simple terms, it enables companies to bring in highly skilled international workers with specialized knowledge or expertise not readily available in the United States. This program is critical in filling labor gaps and driving economic growth by attracting talent from various fields such as IT, engineering, finance, healthcare, and more.

The structure of the H-1B visa involves three key components: the employer sponsor (petitioner), the beneficiary (employee), and the U.S. Citizenship and Immigration Services (USCIS). The sponsoring employer must demonstrate that they have a legitimate need to hire a foreign worker and will pay them at least the prevailing wage for their occupation.

Who is eligible?

To be eligible for an H-1B visa, individuals must meet certain criteria including having obtained at least a bachelor’s degree or its equivalent and being offered employment by a U.S.-based company. The job itself must also qualify as a specialty occupation requiring specialized knowledge and skills.

Each fiscal year, there is a cap on how many new H-1B visas can be issued – currently set at 85,000 per year – with some exceptions for certain categories like universities and nonprofit research organizations. This means that demand often exceeds supply leading to an annual lottery system where visa petitions are randomly selected for processing.

H-1B Cap and Exemptions

The H-1B visa program has an annual cap on the number of visas that can be issued each fiscal year. Currently, the cap is set at 65,000 for general applicants, with an additional 20,000 reserved for individuals who have earned a master’s degree or higher from a U.S. institution.

However, not all H-1B applications are subject to this cap. Certain employers and positions are exempt from the numerical limitations. For example, nonprofit organizations affiliated with institutions of higher education are exempt from the cap. Additionally, applicants who already hold an H-1B visa and wish to change employers or extend their stay in the United States are also exempt.

Furthermore, certain beneficiaries such as those working at qualifying research institutions or holding advanced degrees in science, technology, engineering, or mathematics (STEM) fields may be eligible for exemptions from the regular cap.

It is important to note that while these exemptions exist, they do not guarantee approval of an H-1B petition. Applicants must still meet all other eligibility requirements and provide supporting documentation to demonstrate their qualifications.

Understanding these exemptions can help both employers and prospective employees navigate the complex process of applying for an H-1B visa effectively and increase their chances of success.

Application Process

The application process for an H-1B visa can be complex and time-consuming for HR leaders, employees, and even dependents. Understanding the timeline is essential to ensure that you submit your application on time and increase your chances of success.

The first step is to find a sponsoring employer to file the petition on your behalf. This process can take some time, as it involves searching for job opportunities, submitting resumes, attending interviews, and negotiating job offers.

Once you have secured a job offer from an employer willing to sponsor your H-1B visa, they must file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA ensures that the employer will pay you fair wages and not negatively impact U.S. workers.

After receiving approval from the DOL, your employer can then file Form I-129 Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS). This form includes all the necessary documentation supporting your eligibility for the H-1B visa.

Once USCIS receives your petition, they will thoroughly review all documents submitted. If additional evidence or information is required, they may issue a Request for Evidence (RFE), which can delay processing times.

If everything goes smoothly and there are no issues or RFEs raised by USCIS, you may receive an approval notice within several months after submitting your application. However, it’s important to note that there is no specific timeline guaranteed by USCIS due to various factors such as workload volumes and processing times at different service centers.

It’s crucial to start early in preparing your application materials and working closely with your sponsoring employer throughout this process. By doing so, you’ll have ample time to address any potential challenges that may arise during the application process.

H-1B Application Timeline

The H-1B application timeline is a crucial aspect to consider when planning to apply for this visa. It’s important to have a clear understanding of the process and the various stages involved.

First, it’s essential to know that the U.S. Citizenship and Immigration Services (USCIS) starts accepting H-1B registration and petitions on April 1st each year for employment starting on October 1st of that same year. However, in recent years, there has been an annual cap on the number of H-1B visas issued, which means that applications may be subject to a lottery system if there are more applicants than available slots.

Once the USCIS receives your petition, they will conduct initial processing and issue receipt notices within several weeks. After this stage, you will need to wait for their decision regarding your application.

Typically, by mid-June or July, applicants start receiving approval notices or requests for additional evidence (RFEs). If you receive an RFE, it’s essential to respond promptly and provide all requested documentation.

It’s important to note that USCIS processing times can vary depending on numerous factors such as case complexity and workload. Therefore, it’s advisable to submit your application as early as possible in order to maximize your chances of success.

Remember: stay informed about any updates or changes in policies related to H-1B visas!

Required Documentation

When applying for an H-1B visa, there are several important documents that you must gather and submit. These documents play a crucial role in determining the success of your application. Here’s a breakdown of the required documentation:

1. Labor Condition Application (LCA): The LCA is filed with the U.S. Department of Labor and includes details about your proposed employment, such as salary, job duties, and work location.

2. Form I-129: This form serves as the petition for nonimmigrant worker status and must be completed by your prospective employer.

3. Supporting Documents: You will need to provide evidence to support your eligibility for the H-1B visa category. This may include educational degrees or certifications, letters from previous employers verifying relevant work experience, and any other relevant documents that demonstrate your qualifications.

4. Passport: A valid passport is required throughout the entire application process.

5. Photos: Two passport-sized photos meeting specific requirements should also be included with your application.

6. Fees: Payment of applicable fees is necessary when submitting your H-1B visa application.

It’s essential to ensure that all required documentation is complete, accurate, and up-to-date before submitting your application to avoid any delays or rejections.

H-1B Lottery

The H-1B lottery is a crucial part of the H-1B visa application process. Each year, the United States Citizenship and Immigration Services (USCIS) receives more applications for people who want access than there are available visas, leading to a random selection process known as the lottery.

During this lottery, USCIS selects a predetermined number of applications at random (it does not depend on start date or state, like some in California think) from the pool of received petitions. This means that even if you meet all eligibility requirements and submit a complete application, there is still no guarantee that you will be selected in the lottery.

The H-1B lottery has become increasingly competitive over the years due to high demand for these visas. In recent years, USCIS has received far more applications than there are available visas, resulting in many applicants being left disappointed.

Being selected in the H-1B program is just the first step towards obtaining an H-1B visa. If your petition is chosen in the lottery, it will undergo further review by USCIS before a final decision is made on your application.

It’s important to note that while being selected in the H-1B lottery increases your chances of securing an H-1B visa, it does not guarantee approval. Your application must still meet all eligibility criteria and be accompanied by required documentation to be considered for approval.

If you are not selected in the H-1B lottery or your application is denied after review, it doesn’t mean that all hope is lost. There may be alternative visa options or other paths to explore depending on your circumstances and goals.

Navigating through the H-1B process can be complex and overwhelming. It’s advisable to seek guidance from an experienced immigration attorney or consultant who can help ensure that your application meets all requirements and maximize your chances of success for employment authorization.