It’s that time of year again when employers that want to hire recent college graduates and other professionals prepare to file H-1B visa petitions. Because U.S. Citizenship and Immigration Services (USCIS) will accept petitions up to six months before the employee’s start date, and the first possible start date is the first day of the new federal fiscal year (FY)—which begins October 1—USCIS accepts H-1B petitions on April 1. There is a lot to do before the petition is ready, so let’s start with these FAQs.
H-1B FAQs Answered
Is an H-1B visa a green card? The H-1B is a temporary “nonimmigrant” visa, whereas a green card is “permanent residence” for someone immigrating permanently to the United States. Most employers sponsor an H-1B visa first and then decide if they want to sponsor the employee for permanent residence. The latter requires establishing that you are unable to fill the position with a qualified American worker.
Does your employee candidate qualify? H-1B immigration status is intended for foreign nationals working for a U.S. employer in a specialty occupation. A “specialty occupation” is defined by USCIS as one in which:
- A bachelor’s degree or higher in a specific field is normally a minimum job requirement;
- The job is complex or unique enough that it can be performed only by an individual with that degree;
- The employer normally requires that degree for the position; or
- The knowledge required in the job is usually associated with a bachelor’s degree in a specific field.
The textbook case of an H-1B would be an engineer with an engineering degree.
One way to determine if your employee candidate will qualify is to ask if you could hire—or have hired—someone to perform the job who doesn’t have the same degree the candidate has. For example, let’s say you are hiring a project manager with an MBA but have a few other project managers with computer science degrees, finance degrees, or even communications degrees. USCIS would view these degrees as not being related. As a result, it would likely conclude the position being offered isn’t a specialty occupation because one can qualify for it with education and skills developed via a number of unrelated degree programs—in other words, a “specific degree” isn’t required. Contrast this with a doctor, for example, who must have a graduate medical degree to become licensed (a history degree wouldn’t suffice) or a professor who must have an advanced degree related to the field that she will be teaching.
How long can they stay? Initial approval is typically granted for three years and may be extended another three years.
How likely is an approval? About a quarter of all petitions are denied. But the question isn’t so much about whether USCIS will approve the petition but about whether it will even select the petition in the annual lottery. The H-1B process is limited. For the last 15-plus FYs, there has been an annual cap of 65,000 on H-1B visas, with an additional 20,000 H-1Bs available for foreign nationals who have earned a master’s degree or higher from a U.S. university. Several pieces of legislation have been introduced over the years seeking to raise the cap or make it market-based, but so far none have gained traction.
What is my first step? An immigration attorney starting an H-1B petition filing will ask for the following items:
- A very detailed job description to verify that the position is a specialty occupation;
- An organizational chart (in some cases);
- Basic data about the organization, such as the year it was established and how many employees it has;
- Biographical data about the employee candidate; and
- Copies of the candidate’s educational credentials.
Additional information is required if the organization is filing an H-1B petition for the first time.
Bottom Line
If you are planning to sponsor an H-1B employee—especially if you have international students working for you in optional practical training—you should contact your immigration attorney no later than the second week of March to ensure you can participate in the FY 2020 lottery.
If you have immigration questions, feel free to e-mail them to Elaine Young, a Shareholder at Kirton McConkie PC. She is also an Editor for the Utah Employment Law Letter.