Employers seeking H-1B visas in 2018 will be submitting their visa petitions at a moment when a variety of immigration changes are being proposed and considered.
As you probably know, the policy of the current White House is to tighten the loopholes in current immigration laws and to enforce those laws aggressively.
U.S.-based employers who are considering hiring foreign workers on H-1B visas should contact us immediately.
Every year, U.S. Citizenship and Immigration Services (USCIS) accepts only a limited number of petitions for new H-1B visas.
The demand for these visas has far exceeded the supply on the first available day to file (April 1) for the last several years.
So if the employer’s H-1B applications were not 100% complete, accurate, and on time, the employer (and the employees) could miss out on the opportunity to obtain an H-1B visa and then be forced to wait another year.
So right now, U.S.-based employers are deciding what their H-1B needs are, and they’re working with immigration lawyers to make sure that their H-1B applications are carefully prepared.
WHO QUALIFIES FOR H-1B VISAS?
H-1B visas are nonimmigrant work visas that allow U.S.-based employers to hire professional foreign employees in a “specialty occupation.”
The employee and the employer both must satisfy exacting criteria and qualifications before an H-1B visa will be issued.
To be eligible for an H-1B visa, foreign employees must possess at least a bachelor’s degree or its equivalent in a field that is closely linked to the offered position.
The U.S.-based employer must also have a position available that requires a bachelor’s degree in the specific field of study.
WILL H-1B VISA EXTENSIONS BE ELIMINATED?
Under current U.S. immigration law, there are limited circumstances that enable an H-1B worker to extend H-1B status beyond the initial six-year maximum.
If the process to obtain an employment-based green card for the H-1B employee has begun, an extension may be possible.
A plan to eliminate that extension has been rumored.
Such a plan would compel hundreds of thousands of predominantly Indian H-1B visa holders in a variety of highly-skilled jobs to leave the U.S.
However, according to Jonathan Withington, the chief of media relations for USCIS, such a plan is not under consideration.
Witherington explained to Newsweek, “The agency is considering a number of policy and regulatory changes to carry out the president’s ‘Buy American, Hire American’ executive order, including a thorough review of employment-based visa programs.” But he added, “USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of … H-1B extensions beyond the 6-year limit.”
WHAT CHANGES TO THE H-1B VISA PROGRAM ARE UNDER CONSIDERATION?
At least for now, the extensions discussed above proceed as usual. Unfortunately, in the absence of new legislation, immigration authorities may make more aggressive use of their existing enforcement tools.
For example, mandatory face-to-face interviews with H-1B candidates could add another hurdle to an already lengthy process and could also give immigration authorities one more opportunity to refuse to grant the visa to particular candidates.
More H-1B candidates and their sponsoring employers are also receiving much higher volume of requests for evidence (RFEs), which can significantly delay the process and burden both the employer and employee with cumbersome document requests.
The USCIS requests for evidence usually question a U.S. employer’s need for the H-1B visa or challenge the employer’s qualifications for obtaining the visa.
Employers, through their attorneys, must then submit more evidence to prove eligibility and need.
That’s another reason why employers seeking H-1B visas should have the advice and counsel from skilled immigration attorneys from the very beginning of the H-1B visa application process.
HOW MANY REQUESTS FOR EVIDENCE ARE BEING MADE?
According to Reuters, from January 1 through August 31, 2017, USCIS issued approximately 85,000 requests for evidence to H-1B visa petitioners.
To give some perspective, this is a 45 percent increase over the same time period in 2016, while the number of actual H-1B petitions received by USCIS increased by only about 3 percent.
Visa holders and employers also cannot expect that H-1B extensions will be virtually assured, as they may have been in the past.
Employees on student visa (F-1) seeking longer term employment through the H-1B program should also know that there is a proposal under consideration that could eliminate or reduce the length of the Science/Technology/Engineering/Mathematics (STEM) Optional Practical Training (OPT) program – a program that currently can provide two additional years of employment authorization after the initial one-year post-completion period of employment authorization.
Another proposal that Congress is considering would raise the minimum annual salary for employees holding H-1B visas from $60,000 to $90,000.
Clearly, if such a proposal becomes law, it would reduce or even remove the ability of many employers to sponsor the highly-skilled employees they need.
SO WHAT CAN H-1B VISA PETITIONERS GENERALLY EXPECT THIS YEAR?
In general, U.S.-based employers, and the potential employees they seek to sponsor, can expect more frequent and longer delays throughout the H-1B visa application process.
Additional interviews, additional requests for evidence, and heightened scrutiny of every detail of the visa petition should not, in most cases, be a cause for alarm.
Of course, with only 85,000 new H-1B visas made available each year, some will miss out.
Experienced immigration attorneys can make sure that an employer’s H-1B visa petition is accurate and complete and can put an employer in the best possible position to have its application approved. With this year’s April 1 deadline quickly approaching, employers must act now.
Fortunately, for employers who are unable to obtain H-1B visas, there may be practical alternatives.
In fact, for some employers and employees, an L-1 “intracompany transfer” visa or an O-1 visa for individuals with “extraordinary abilities” may be more appropriate than an H-1B visa.
If you are a U.S.-based employer, immigration attorneys can explain your options and help you acquire the visas that your company needs to meet business goals.