The H-1B visa has received much media attention in recent years, mostly for the wrong reasons.  Despite well-documented bi-partisan efforts during the Obama administration, there has been no real reform of the H-1B category (apart from employment authorization for spouses of some H-1B workers who are applying for green cards).

Under the current administration, the H-1B visa category is under more pressure than ever, with Trump threatening to reduce the quota, increase the minimum salary, require US recruitment efforts, or perhaps do away with the category altogether.

The current immigration fiscal year (October 1, 2016 through September 30, 2017) is unlikely to be affected by whatever measures are introduced. Therefore while current lottery odds are three or four to one against, they may be the best on offer for some time to come. 85,000 people will have H-1B approvals by October 1, 2017; if you’re not in, you can’t win.

 

 

What is an H-1B visa?

H-1B visas are for foreign graduates (bachelor’s degree or higher) with a U.S. professional job offer, i.e., one which requires a degree.  The applicant and the position must therefore be professional and the degree must be relevant to the employment.  The applicant’s credentials will need to be evaluated to show equivalency to a 4-year U.S. degree.  In the absence of a degree, relevant work experience may be taken into account (3 years’ relevant work experience = 1 year of college).  This visa category is heavily regulated, and the employer is closely scrutinised on such issues as prevailing wage and what USCIS refers to as “job shopping” or the contracting out of labor.

But that’s the least of anyone’s worries.  The real problem is the quota system.

H-1B quota:

Updating my blog on the H-1B visa quota from last year is very simple because nothing has changed.  No immigration reform measures to increase the H-1B quota have passed.  Proposals to increase the bachelor’s quota to 110,00 and master’s to 25,000 in the last few years have come to naught and the worldwide quota of H-1B visas remains at 85,000, woefully short of demand in recent years and almost certain to result in another H-1B lottery in the first week of April 2017.

The annual worldwide quota of 85,000 H-1B visas is made up as follows:

58,200 for Bachelor’s degree holders

6,800 for H-1B1 visas for nationals of Chile and Singapore

20,000 for US Master’s degree holders

In recent years, the only way is up, with more and more H-1B petitions filed each April 1st.  In 2016, 236,000 applications were filed in the first week of April, up 3,000 on the previous year. The number in 2015 (233,000) was up from 172,000 in April 2014, which was up from 124,000 in April 2013.  This trend is likely to continue when the quota becomes available on April 1, 2017 for Fiscal Year 2018.

It’s remarkable that despite the risks and ever diminishing odds of this crazy lottery, the trend of ever-increasing numbers of applications is almost certain to continue.

H-1B filing fees payable to US Citizenship & Immigration Service (USCIS) are slightly up this year, having increased on December 23, 2016:  $1,710 where the US employer has less than 26 employees; $2,460 if more than 26 employees; and, an additional $1,225 if the case is expedited.  Why expedite? Expedited or ‘premium’ processing usually means USCIS will respond within 14 days of filing but for April H-1B petitions, the volume of applications slows down processing, and it’s likely to be 4-8 weeks before successful, un-expedited cases are receipted in, indicating acceptance (a lottery ‘win’).  Expediting means you’ll know at the earliest opportunity whether (i) your petition has been accepted for processing, and (ii) approved, but it doesn’t increase your chances of being selected or allow you to begin working earlier than October 1.  It does, however, shorten the limbo period for the employer and the applicant, and like Mario Puzo’s Godfather, if the news is bad you may want to hear it as soon as possible.

Given the challenges, it’s surprising the number of people who don’t look at possible alternatives.

Green card via PERM (DOL certification), is a potential option for bachelor’s (EB-3) and master’s (EB-2) degree holders in some cases.  Recently the EB-3 category has not been badly backlogged for Irish nationals, although it may be necessary (especially for J-1 graduates) to spend some time outside the US while the DOL and USCIS processes wind their course.  EB-2 is generally current, meaning no backlog.  Needless to say, it’s impossible to predict what the future may hold in terms of backlogs and processing times; best to get in line sooner rather than later.

For students on an F-1 visa, Curricular Practical Training (CPT) may sometimes be an option, see: https://www.ice.gov/sevis/practical-training

STEM (Science, Technology, Engineering and Mathematics) students may apply for a 17-month STEM extension in certain circumstances.

For USCIS Q&A on this topic, see: https://www.uscis.gov/archive/archive-news/questions-and-answers-extension-optional-practical-training-program-qualified-students

For Stem degree list: https://www.ice.gov/sites/default/files/documents/Document/2014/stem-list.pdf

 

As discussed in more detail in our e-Guide, L-1 intra-company transfer visas, E-1/E-2 treaty trader/investor visas and the J-1 training visa are excellent categories for suitable cases. See: http://obrienandassociates.com/free-us-visa-eguide/

TN visas are available to Canadian and Mexican professionals under NAFTA, while E-3 visas allow Australian citizens to work as professionals in the U.S.

Although some graduates may be too early in their career to qualify for an O-1 visa for individuals with extraordinary ability or achievement in sciences, education, business, athletics or the arts, it’s worth reviewing the requirements. See: https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement

If you can secure a job offer from a cap-exempt organisation, the quota does not affect you.  The cap does not apply to institutions of higher education, non-profit research organizations, and government research organizations. These qualified institutions and their affiliates are exempt from the H-1B cap and can sponsor for an H-1B visa at any time of the year.

Conclusion:

When writing last year’s Blog piece, the prediction was that the H-1B quota would have been increased. We now know that far from being increased, its very existence is threatened and the rules are almost certain to become much tougher.  For those who don’t have any US visa alternatives, the H-1B quota opening on April 1st may be your best shot for some years to come.

OBA Law Office Limited t/a O'Brien And Associates • Registered in Ireland: 541466 • Registered Office: As Above

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