To H-1B or not to H-1B (or leopards eating multiple faces)

The H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. These are jobs that typically require a bachelor’s degree or higher in a specific field.

Key Features of the H-1B Visa

• Sponsorship is required: An individual cannot apply for an H-1B visa on their own; it must be sponsored by a U.S. employer.Specialty occupations: The job must require the theoretical and practical application of a body of highly specialized knowledge, such as in fields like IT, engineering, mathematics, and medicine.
• Initial duration: The visa is generally granted for an initial period of up to three years, with a maximum total duration of six years, though extensions are possible under certain circumstances.
• Dual intent: The H-1B visa is a “dual intent” visa, meaning the visa holder can have the intention of staying in the U.S. permanently while still being a non-immigrant. This allows them to pursue permanent residency (a Green Card) without jeopardizing their H-1B status.

H-1B Cap and Lottery System 🎲

The U.S. government sets an annual limit, or “cap,” on the number of H-1B visas issued each fiscal year.

• Regular cap: The current annual statutory cap is 65,000 visas.
• Master’s cap: There is an additional 20,000 visas reserved for foreign professionals who have earned a master’s degree or higher from a U.S. institution of higher education.
• Cap-exempt employers: Certain organizations are exempt from the annual cap. These include universities, non-profit research organizations, and government research organizations

Due to high demand, the number of applications often exceeds the available visas. To manage this, U.S. Citizenship and Immigration Services (USCIS) uses a random lottery system to select eligible petitions from the pool of registrations. Employers must first electronically register each candidate during a specific period. Only those whose registrations are selected in the lottery can proceed with filing a full H-1B petition.

Application Process and Employer Responsibilities

The H-1B application process is complex and primarily handled by the employer. Here are the key steps and responsibilities:

Application Process

• Electronic Registration: The employer electronically registers each prospective H-1B employee with USCIS during the designated registration period.
• H-1B Lottery: If the number of registrations exceeds the annual cap, USCIS conducts a lottery to select the registrations.
• Labor Condition Application (LCA): For selected registrations, the employer must file and get a certified LCA from the Department of Labor (DOL). The LCA is a key document where the employer attests that they will pay the H-1B worker the prevailing wage for that position and that their employment will not negatively affect the working conditions of similarly employed U.S. workers.
• H-1B Petition: The employer then files Form I-129, Petition for a Nonimmigrant Worker, with USCIS, including the certified LCA and supporting documentation.
• Visa Interview: Once the petition is approved, if the employee is outside the U.S., they must attend a visa interview at a U.S. embassy or consulate to get the H-1B visa stamp in their passport.

Due to high demand, the number of applications often exceeds the available visas. To manage this, U.S. Citizenship and Immigration Services (USCIS) uses a random lottery system to select eligible petitions from the pool of registrations. Employers must first electronically register each candidate during a specific period. Only those whose registrations are selected in the lottery can proceed with filing a full H-1B petition.

Employer Responsibilities

The employer has several legal obligations to ensure compliance with the H-1B program:

• Paying the required wage: The employer must pay the H-1B worker at least the prevailing wage for the occupation in the geographic area of employment, or the actual wage paid to other employees with similar experience and qualifications, whichever is higher.
• No displacement of U.S. workers: The employer must certify they are not displacing U.S. workers to hire H-1B employees.
• Public access file: Employers are required to maintain a Public Access File (PAF) containing documents related to the H-1B employment, such as the certified LCA and wage information. This file must be available for public inspection upon request.
• Return transportation: If the employer terminates the H-1B worker’s employment before their authorized period expires, the employer is obligated to offer to pay for the worker’s reasonable cost of return transportation to their home country.