The H-1B visa is a nonimmigrant visa that permits companies in the United States to hire high-skilled foreign workers. 1.8 million H-1B visas were distributed between 2001 and 2015, according to the Pew Research Center. In April 2017, as part of the “Buy American and Hire American” executive order, President Trump required scrutiny on the H-1B, and immediately USCIS took steps to limit the program.
Suspending the fast track program, called “premium processing,” that allows those applying for an H-1B to pay a higher fee to get a notice of whether their application was accepted, within 15 days, was the first thing USCIS did to limit the H-1B. With H-1B applications due in the first two weeks of April, 2018, premium processing has once more been suspended.
The H-1B is a nonimmigrant worker visa that is typically valid for 3 years and permits an employer to hire alien workers who are employed in “specialty occupations.” The H-1B visa beneficiary needs to have at least a bachelor’s degree or the equivalent. Sample specialty occupations for the H-1B include engineers, lawyers, doctors, and computer engineers. While the visa is valid for 3 years, it can be extended for a maximum of six years and then extended beyond that if the green card process has been initiated.
An employer files the H-1B petition with USCIS, but the initial step is to have the U.S. Department of Labor certify a “labor condition application” (LCA) to ensure the foreign worker will not harm any U.S. workers as far as displacement or wages. With some exceptions, H-1B petitions can only be filed during a short window of time which is this year from April 2, 2018 to April 6, 2018. Employers need to be prepared ahead of time in order to get the H-1B filed timely for their application to be part of the “lottery” which is explained below. USCIS limits or “caps” the number of H-1Bs made available each year, and currently 65,000 are available, with 20,000 additional for beneficiaries who graduated with a US master’s degree. If an application is not selected in the lottery process then the employer and employee must consider other options to either stay in the US in another status, re-enroll back to school (F-1 status) or leave the US.
H-1B extensions and petitions by public educational institutions and their nonprofit affiliates and government research agencies, known as “cap exempt” H-1Bs, are not affected by this numerical limit and are not part of the lottery.
Over the last several years, the numerical limit has been reached in the first week of H-1B filing, which typically starts on April 1 (depending on the day of the week that the 1st falls), meaning there is a “lottery” for the limited H-1B visas. If the petition is selected in the lottery and the H-1B petition is approved, the beneficiary’s H-1B classification begins on October 1 of that year. USCIS has recently increased scrutiny on cap exempt cases to ensure that there is an active relationship between the nonprofit and university and a fundamental activity of the employer is to directly contribute to the research of the affiliated university. The 2017 fiscal year cap H-1Bs met even tougher review from USCIS due to “level 1” wage assignments. If an employer used a level 1 wage in the LCA, USCIS required additional evidence to prove that the job meets the proper wage assignment for the occupation and/or that the occupation is a specialty occupation requiring a bachelor’s degree. Essentially, employers must demonstrate that the position is complex enough to qualify for an H-1B, but still suitable for Level 1 wages.
President Trump’s philosophy of improving our country includes improving opportunities for the American worker. This will likely see further pressure on the H-1B program. The President’s strategy is complex, and it may take years to determine its degree of success. I remain hopeful that foreign born will continue to find Northeast Ohio one of the best places to find work and raise their families for many decades to come.
Margaret W. Wong, Esq., is an adjunct professor of law at Case Western Reserve University Law School and has been recognized as a National Asian Pacific American Bar Association (NAPABA) Trailblazer. She enjoys a “Preeminent AV” rating by Martindale Hubbell. She was attorney for President Obama’s Auntie. Margaret W. Wong & Associates LLC is a national, full-service immigration and criminal law firm with offices in Atlanta, Chicago, Cleveland, Columbus, Los Angeles, Minneapolis, Nashville, New York City, and Raleigh.