1stAprilShutterstock130327529The H-1B visa has received much media attention in recent years, mostly for all the wrong reasons, real or perceived. Despite well-documented bi-partisan efforts during the Obama era, there was no real reform of the H-1B category (apart from employment authorisation for spouses of some H-1B workers who are in the process of applying for green cards). Under Trump, threats to H-1B have included reducing the quota, increasing the minimum salary, requiring US recruitment efforts, and even doing away with the category altogether, but nothing of real significance has occurred so far and it’s business as usual on April 2, 2018.

Despite Trump’s Buy American Hire American (BAHA) executive order ‘putting Americans first’, there’s nothing to suggest that US employers will be dissuaded from applying for H-1B’s in 2018.  If atrociously bad lottery odds – three to one against, or worse – didn’t succeed in reducing applicants in prior years, that’s unlikely to change this year. 

Bottom line: some 85,000 H-1B visa approvals will have been granted by October 1, 2018. It remains the only real option for many hopefuls, employers and employees alike.

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 count (3 years’ relevant work experience = 1 year of college) though 100% work experience is very unlikely to cut it.  This visa category is heavily regulated, and the employer is closely scrutinised on such issues as prevailing wage for that job in the geographic location, and what USCIS refers to as “job shopping”, i.e., contracting-out of labor. The Trump administration recently issued a Policy Memorandum on the topic of employees who will work at a third-party location or off-site. Additional evidence, e.g., contracts, will be required to corroborate such arrangements, though it’s not clear at time of writing how this will be dealt with by USCIS.

The real problem, however, is the quota system.

H-1B Quota

Once again, updating last year’s blog post on the H-1B visa quota is very simple because nothing has really changed: the bachelor’s degree quota is still 65,000, with an additional 20,000 for master’s degrees. The worldwide quota of H1B visas therefore 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 2018.

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

It’s remarkable that despite the risks and ever diminishing odds of this crazy lottery system, the trend of ever-increasing numbers of applications is almost certain to continue.  Once again, the only way would appear to be up, with more H-1B petitions filed every April 1st, exceeding the quota and going into random lottery selection.  In 2018, April 1st falls on a Sunday, so the first available application date this year is April 2nd

In 2017, 236,000 applications were filed in the first week of April, up 3,000 on the previous year (233,000 in April 2016). The number in April 2015 (172,000) was up from 124,000 in April 2014. This trend is likely to continue when the quota becomes available on April 1, 2018, for Fiscal Year 2019, which runs from Oct 1, 2018 – Sept 31, 2019.

H-1B filing fees payable to US Citizenship & Immigration Service (USCIS) increased in December 2016 but are the same as last year:  $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 in Episode One, if the news is bad you may want to hear it right away.

Given the challenges, it’s surprising that more people don’t look at possible alternatives. 

Lawful Permanent Residence (Green card) via PERM (DOL certification). This refers to the process of a US employer advertising the position and engaging in US recruitment efforts to demonstrate that a qualified US citizen or lawful permanent resident (green card) worker is not available to do the job. It’s a potential option for bachelor’s (EB-3) and master’s (EB-2) degree holders, in some instances and although, the EB-3 category has not been badly backlogged for Irish nationals for some time, under the current administration employment-based green card applications are extremely protracted and backlogged, at time of writing. In the absence of a work visa, the applicant would have to wait outside the US for a lengthy period, possibly for a year or more, while the process winds its course, and the US employer would have to be willing to go along with this lengthy and indefinite arrangement.  If/when these backlogs are cleared, and the process becomes more streamlined again, this option may be worthier of consideration than at present. In last year’s blog, we did advise interested parties to get in line because of the possibility of backlogs and increased processing times; just sayin’.

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/2016/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 (at time of writing), while E-3 visas allow Australian citizens to work as professionals in the US.

Although not usually suitable for new graduates, O-1 visa for individuals with extraordinary ability or achievement in sciences, education, business, athletics or the arts may be a very good option for those who qualify, 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, you are not subject to the quota.  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:

In 2016, we predicted that the H1B visa quota would increase for Fiscal Year 2017, under President Obama; and in 2017, we feared that it would decrease under Trump. Neither has come to pass and we’re still where we were this time last year and the year before, with 85,000 H-1B visas available worldwide and no sign of any lessening in applications. We’ll refrain from making any prediction for next year and instead, for those whose best shot for some years to come may be the H-1B visa, we say: carpe diem. If you’re not in, you can’t win.

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

Share This