Notwithstanding negative media attention, bad odds, and more recently, Trump’s Buy American Hire American (BAHA) executive order ‘putting Americans first’, U.S. employers have continued to apply for H-1B visas in recent years, although numbers have been down: In April 2018, the number of H-1B petitions received by USCIS (190,000) was down by over 8,000 on 2017 (199,000); and April 2017 was down significantly by a whopping 37,000 on April 2016 (236,000).  An added deterrent this year may be the fact that many H-1B applicants received horrendous requests for further evidence last year, and a significant number were denied, and that grapevine is active. Even some of those who were approved by USCIS were subsequently refused visas at embassies abroad, including new graduates and those who had recently completed J-1 internships in the U.S.

Another cooling measure introduced by the current administration is the new Labor Condition Application (LCA) which questions employers as never before about third-party work placements, including names and addresses of companies and work locations off site.  This is designed to target tech companies in particular.

Finally, the counting process will be reversed this year so that U.S. master’s degree holders are included in the initial 65,000 bachelor’s quota, and those master’s graduates who don’t make that cut get a second bite at the cherry in the 20,000 master’s quota. This is expected to increase the master’s quota by an estimated 16% and reduce the bachelor’s quota proportionately.

Notwithstanding any of this, the bottom line is that 85,000 H-1B visa approvals will have been granted by October 1, 2019 and it remains the only real option for many hopefuls, employers and employees alike. 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 count (3 years’ relevant work experience = 1 year of college) though 100% work experience is very unlikely to cut it, especially in the current environment.  This visa category is heavily regulated, and the employer is closely scrutinised on such issues as prevailing wage for the job in the relevant geographic location, and what USCIS refers to as “job shopping”, i.e., contracting-out of labor – as mentioned above, the new LCA seeks to target employers who send employees to work at a third-party location or off-site, even though this often represents a legitimate customer need. Additional evidence, e.g., contracts, will be required to corroborate such arrangements.

As if that’s not enough, we have the quota system.

H-1B quota:

Apart from the increased odds for U.S. master’s degree holders, the H-1B visa quota remains the same as other recent years: the bachelor’s degree quota is still 65,000, though U.S. master’s applicants will also compete for these this year; an additional 20,000 for U.S. master’s degrees. The worldwide quota of H-1B 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 2019, though this writer will be surprised if applicant numbers are not down on last year.

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

58,200 for bachelor’s degree holders (this pool to be available to U.S. master’s also from April 2019)

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

20,000 for US Master’s degree holders

The number of petitions that USCIS receives on April 1, 2019 for FY 2020 (which runs from Oct 1, 2019 – Sept 31, 2020) will be interesting: if the number is down, many will conclude the Trump administration’s message was received loud and clear. If the numbers are up, it will demonstrate, in this writer’s opinion, that U.S. employers sometimes need hire foreign workers, regardless of how risky or how costly it is to hire them.

H-1B filing fees payable to US Citizenship & Immigration Service (USCIS) are the same as last year:  $1710 where the US employer has less than 26 employees; $2460, if more than 26 employees; and, an additional $1410 if the case can be expedited. Last year, expedited or ‘premium processing’ was suspended for H-1Bs and though it was subsequently re-instated briefly, it has again been suspended until February 19, 2019. It remains to be seen whether it will survive after April 1. 

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’) which has a slow-down effect on expedited processing.  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 of H-1B, 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 in some circumstances for bachelor’s (EB-3) and master’s (EB-2) degree holders. 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 backlogs are cleared, and the process becomes more streamlined again, this option may be worthier of consideration than at present.

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

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