By Michael Phulwani, Esq. & Dev B. Viswanath, Esq.
The H-1B visa program allows employers in the United States to employ foreign employees in specialty occupations. A specialty occupation is defined as the theoretical and practical use of a body of highly specialized knowledge. An employee is required to have a bachelor’s degree or higher in the specific occupation. Some possible examples of specialty occupations include engineering, mathematics, medicine and health, law, accounting, theology, and business specialties. An individual working under a H-1B visa is strictly limited to work for the sponsoring employer. Congress has mandated a cap of 65,000 for the number of H-1B visas that may be granted every year, but there is also an exception to the H-1B cap for beneficiaries who have entered a US master’s degree or higher which is available for up to 20,000 more visas. There is one exception that applies to the 65,000 cap, 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program for individuals from Chile and Singapore. This is part of the US – Chile and US – Singapore free trade agreements. Any visas that are not used from this group of visas are then available for H-1B use for the next fiscal year. Currently since there is a such a high demand for these very limited visas, petitions are selected by USCIS through a computer generated random selection. There are narrow categories of particular jobs areas whereby H-1B fresh applications can be exempt from the cap and can be applied for freely with the expectation and knowledge that at the very least the petition will not be rejected outright for lack of visa numbers.
If a foreign national employee quits or is discharged from employment by the sponsoring employer the employee must either apply for and be granted a change of status, find another employer, or leave the United States. Under this visa category, individuals may live and work in the United States for up to three years, and then apply for an extension for an additional three years. If an H-1B visa holder wants to continue to work in the US after six years they must leave the United States for at least one year before applying for another H-1B visa. Any dependents of H-1B visa holders, spouse and children under the age of 21, may be eligible for an H-4 visa. An H-4 visa holder may stay in the US as long as the H-1B visa holder maintains lawful status. They are allowed to attend school, apply for a driver’s license, and open a bank account. An employee with an H-1B visa may travel outside the US but they must have a valid visa stamped in their passport in order to re-enter.
The H1B visa is a dual intent visa and that means that a beneficiary may both becoming in for a temporary job and have the intention to remain in the United States permanently, thus an H-1B holder may also initiate the process of getting a “green card or Lawful Permanent Residence while on H-1B. Once the permanent residence process is started, there may be opportunities to extend the H-1B pas the allowed 6 years. And time not used on H-1B work with a 6 year period can be “re-captured.”
Many employers have noticed that USCIS is disputing or questioning an unusually large number of H-1B visa applications, whether they be fresh application or even with what seem to be straightforward renewals. An increased number of applications are not being approved and instead USCIS is requesting more evidence to support the Form I-129. According to statistics from USCIS, in 2017 there was a forty-four percent increase in the number of “requests for evidence” also known as RFEs that were sent to applicants. This is the highest number of RFEs since 2009. Many applicants whose case had not been resolved by October 1st, the annual effective date for new visas, had to be sent home from their jobs. The stricter rules on granting an H-1B visa correspond with President Trump’s promises and threats for more rigorous screening of all immigrants. Many employers are now unsure if they can continue to rely on the H-1B visa program and this has in turn forced immigration attorneys and their clients to consider alternative options if a beneficiary’s H1B is not picked in the lottery or denied by USCIS. The cap subject H-1B visas can be initially applied for as early as April 1st for the earliest possible start date of the following October 1st, 6 months later.
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