What is a H-1B visa?

The Challenge Of H-1B Visas

In our Houston Immigration Law practice, we are often asked the question, “How can I get a work visa?” Technically, there is no such thing as a basic visa to work in the US. Each visa classification is for a specific purpose, specifically 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 allows for employment, and it’s probably the closest thing to a “work visa.”

It allows a person to be an employee of a sponsoring employer to carry out duties that require “specialized knowledge.”

This means that the roles 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 professional being sponsored must have that education and/or practical experience.

H-1Bs Are Limited

Regrettably, H-1Bs are frustratingly limited. Under current law, we only have 85,000 new H-1Bs available every year for companies to apply for from the Department of Homeland Security, United States Citizenship and Immigration Services agency (USCIS). Furthermore, 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 organization. This article will focus on each of these challenges with H-1B.

85,000 H-1B Available Each Year

The yearly limit of 85,000 H-1Bs is woefully insufficient to meet the demand US employers have for foreign workers. For fiscal year 2017, USCIS reported to have 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 limit 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 process.

The first phase only applies to H-1B hopefuls who have received a Master’s degree from a US institute, 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 companies 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 transfer 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

An individual cannot self-sponsor for an H-1B. For someone wishing to work in the US as an H-1B, she or he must first be given a job offer by a US employer. When a company desires 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 a generous amount.

A person cannot submit an application for an H-1B, and then go find a job to apply. The company wanting to employ an H-1B worker must file it for that specific potential employee.

Position Must Be For A Specialty Occupation

For an organization to have a chance at success on an H-1B petition, the job provided must be for a “specialty occupation.” In standard terms, the job offered must require a Bachelor’s degree in a specified field for successful completion of the job duties.

The evaluation is done from an industry standpoint as opposed to a company-specific one, and the job title is less important to the analysis than the work duties.

If in the industry a Bachelor’s degree is typically not required for the specific job duties identified in the H-1B petition, because the company requires one doesn’t always mean USCIS will consider the job to be a “specialty occupation.”

Work experience can in some circumstances replace the need for education.

For instance, if someone has a 3-year diploma for post-high school education, and 3 years of work experience in a field, USCIS may consider that to be equivalent to a Bachelor’s degree for H-1B purposes. The scale is 3-years work experience to 1 year of 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 sure situations, such as talent recruitment companies wanting to place H-1B workers at “client” sites or company owners themselves considering pursuing an H-1B for self-employment from being successful with H-1B petitions.

There are ways to possibly make these situations work for H-1B, but it is very difficult.

Conclusion

H-1B visas have remarkable advantages, but getting one can be complicated. USCIS does not consider merit in issuing the H-1Bs available every year. The selection process is entirely random.

The annual limit is far less than the demand. A person seeking an H-1B must have a sponsoring company.

Self-employment and client placement situations are not expected to succeed. No law office or lawyer can ethically claim to improve your chance 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 go over any questions or concerns regarding H-1B visas and the process.

 

Garry L. Davis, managing attorney for Davis & Associates, an immigration law firm, graduated from the University of Texas School of Law and Brigham Young University. Board certified in immigration and nationality law by the Texas Board of Legal Specialization, he has been selected as a Texas Super Lawyer and for Best Lawyers in America. He served the American Immigration Lawyers Association as the Dallas immigration court liaison and as program co-director for a Texas chapter CLE conference held in Mexico. He has frequently spoken on immigration issues by various organizations.

For more information, call us at 832-742-0444