The Challenge Of H-1B Visas
In our Dallas Immigration Law practice, we are frequently asked the question, “How can I get a work visa?” Technically, there is no such thing as a general visa to work in the US. Each visa type is for a specific purpose, such as studying (F-1, M-1, J-1), tourism (B-2), to get married (K-1) or employment within certain limitations (E-1, E-2, L-1). H-1B is one of the visas that allow for employment, and it’s probably the closest thing we have to a “work visa.”
It allows for a person to be an employee of a sponsoring employer to perform duties that require “specialized knowledge.” That means that the duties of the job offered to the H-1B employee must require someone with a Bachelor’s degree or some equivalent education and/or work experience, and the person being sponsored must have that education and/or experience.
H-1Bs Are Limited
Unfortunately, H-1Bs are frustratingly limited. Under current law, we only have 85,000 new H-1Bs available each year for companies to request from the Department of Homeland Security, United States Citizenship and Immigration Services agency (USCIS). Additionally, a person seeking an H-1B cannot obtain one without a job offer and company sponsorship.
Finally, the company must establish to USCIS’s satisfaction that the job offered is, in fact, a “specialty occupation” and that the person will be a bona fide employee of the sponsoring company. This article will address each of these challenges with H-1B.
85,000 H-1B Available Each Year
The annual limit of 85,000 H-1Bs is woefully insufficient to meet the demand US employers have for foreign workers. For the fiscal year 2017, USCIS reported having received over 236,000 applications between April 1 and April 7, 2016, for an October 1, 2016 start date – the start of the US government’s fiscal year 2017.
In other words, the entire 85,000 limits of H-1Bs for 2017 was taken in one week. USCIS has opted to allocate those available 85,000 H-1Bs through a two-phase, completely random lottery system. The first phase only applies to H-1B hopefuls who have received a Master’s degree from a US institution, and it is 20,000 of the total 85,000 H-1Bs.
The second phase includes everyone else who has filed, plus those with Master’s degrees from the US who were not selected in the first round.
Exceptions To The Cap
There are exceptions to the annual H-1B limit. Institutions and organizations involved in education or non-profit research may qualify for H-1Bs without having to take an H-1B visa from the annual limit, or the “cap” as it’s called.
However, an H-1B worker cannot move from this category of H-1B into a cap-subject employment situation without obtaining an H-1B through the lottery.
No Self-Sponsored H-1Bs
A person cannot self-sponsor for an H-1B. For someone hoping to work in the US as an H-1B, he or she must first be given a job offer by a US employer. When a company wants someone requiring H-1B sponsorship to work for it, the company must file a petition on that potential employee’s behalf and pay a portion of the government fees – which can be substantial.
A person cannot apply for an H-1B and then go find a job to use it. The company looking to employ an H-1B worker must file it for that identified potential employee.
Position Must Be For A Specialty Occupation
For a company to have a chance at approval on an H-1B petition, the job offered must be for a “specialty occupation.” In general terms, the job offered must require a Bachelor’s degree in a specific field for successful completion of the job duties. The analysis is done from an industry perspective rather than a company-specific one, and the job title is less important to the analysis than the job duties.
If in the industry a Bachelor’s degree is generally not required for the particular job duties described in the H-1B petition, the fact that the company requires one doesn’t necessarily mean USCIS will consider the job to be a “specialty occupation.” Work experience can in some situations replace the need for education.
For example, if someone has a 3-year diploma for post-high school education, and 3 years of work experience in a specific field, USCIS may consider that to be equivalent to a Bachelor’s degree for H-1B purposes. The ratio is 3 years of work experience to 1 year of a college education.
Must Have A Bona Fide Employee/Employer Relationship
The company sponsor for H-1B purposes must be a bona fide employer to the person being sponsored for H-1B to perform the specific job duties outlined in the H-1B petition. This requirement makes certain situations, such as talent recruitment companies looking to place H-1B workers at “client” sites or company owners themselves considering trying for an H-1B for self-employment from being successful with H-1B petitions. There are ways to potentially make these situations work for H-1B, but it is very challenging.
H-1B visas have tremendous advantages, but getting one can be challenging. USCIS does not consider merit in issuing the H-1Bs available each year. The selection process is completely random. The annual limit is far lower than the demand. A person seeking an H-1B must have a sponsoring company.
Self-employment and client placement scenarios are unlikely to succeed. No law firm or lawyer can ethically claim to improve your chances for success in a random lottery process. Despite these challenges, we at Davis & Associates are successful at processing many H-1B petitions each year and would be happy to discuss any questions regarding H-1B visas and the process.