If you employ foreign nationals, you know that securing an H-1B visa does not always come easy because the federal government limits the number of available visas. Each year the United States Citizenship & Immigration Service (USCIS) conducts a lottery to award these visas, but some employers remain exempt from limits, such as non-profit entities like colleges and universities. Below we provide a broad overview of H-1B visas, how the lottery works, potential future changes, and what you can do to prepare for lottery registration.
What Is an H-1B Visa?
If you haven’t ever applied for a work visa for an employee, you might be unfamiliar with H-1B visas. An H1-B visa allows workers from other companies to come to the United States for employment if they work in a specialty occupation or if they are fashion models. According to the Department of Labor, workers who have highly specialized knowledge and hold a college degree fall under the umbrella of a specialty occupation. H1-B visas exist to help employers get temporary qualified employees from outside the United States when they cannot find the skill set they need in the U.S. workforce.
How the H-1B Visa Lottery Works
Currently, the USCIS approves 65,000 H-1B visas each fiscal year plus an additional 20,000 H-1B’s for those who hold advanced degrees. The new lottery began in 2020 with the implementation of an electronic registration process. Employers who are subject to the 65,000 cap must complete a basic registration process that includes limited information about their company and workers they want to employ in the United States.
The government opens up the initial registration for a minimum of 14 calendar days each year. After the registration period closes, USCIS selects 65,000 visa recipients and invites employers to file an H-1B cap petition. The government does not actually refer to the selection process as a lottery. However, H-1B visas are not first come-first served. Instead, the selection occurs after the close of registration through a randomized process that works like a lottery.
The new registration procedure is especially convenient for employers, and it reduces the costs of applying for an H-1B visa. Instead of completing an entire application, you only have to complete the full application if your employees are selected. This prevents you or your human resources department from spending time on an entire application package only to learn you weren’t selected. In 2021, the initial registration window closed on March 25th.
An Increase in Prevailing Wages
Prior to leaving Washington, the Trump administration implemented new laws to increase the prevailing wages for H-1B visa holders. These new rules intended to provide a greater incentive for businesses to hire American employees and in some cases would price foreign labor too high for employers. The Trump administration sent the rule to the Federal Register on January 15, 2021, but it was not published.
As is normal for incoming presidents, the Biden administration paused all recent rules for review. Ultimately, they issued a final rule on implementing a wage-tier program for H-1B visa holders on March 12, 2021. The rule delays the implementation of the final rule on prevailing wages until May 14, 2021. Immigration lawyers and other groups are lobbying the Biden administration for a change, but only time will reveal any changes.
You’ve Been Selected to Apply for the H-1B Cap, Now What?
Completing the H-1B cap application is no small task. Additionally, rules concerning the award and eligibility for them change regularly, especially with a change in presidential administrations. Meeting all the required deadlines and correctly completing the application is of the utmost importance. Mistakes or delays can lead to H-1B denials, adversely impacting your business.
An experienced immigration lawyer can help you with your application to ensure you have the best chances for approval. Experienced immigration attorneys keep abreast of important changes related to registration and application of H-1B visas to help businesses get the team members they need to come to the United States.
Labor Condition Application
Employers that want to apply for H-1B visas for workers must also obtain a certification from the Department of Labor that shows they have filled out a Labor Condition Application (LCA). An LCA requires employers to comply with the following with regard to H-1B workers:
- Employers must pay the worker no less than similar workers or the required prevailing wage in Louisiana.
- Employers must provide safe working conditions.
- Employers cannot file an LCA during a strike or lockout at their business.
- Employers must give notice of the LCA to the union representative or post information at the location of employment.
H-1B Visa Denials
Employers can get an H-1B visa denial through any part of the process. The Department of Labor might deny your LCA, your H-1B cap petition might be denied, or your employee might be denied as they go through the visa process with the State Department. Denials occur for a variety of reasons:
- The employer did not establish the role as a specialty occupation covered by an H-1B.
- The employer did not provide the required academic or equivalent qualifications for the job.
- The employer did not respond to a request for evidence from USCIS.
- The employer did not pay the right amount or failed to submit the filing fee associated with an H-1B.
These are only a few of the things that might go wrong with securing an H-1B visa after being selected. A skilled immigration lawyer can help.
Contact an Experienced New Orleans Immigration Attorney to Help with the H-1B Process
You want to hire the best people possible for the job regardless of the nation they call home. Securing H-1B visas is a complex process. Those who try to attempt it on their own sometimes struggle with deadlines and paperwork. Our team understands the challenges of obtaining an H-1B visa. Contact the skilled immigration attorneys at Stephenson, Chavarri & Dawson, L.L.C. online or at 504-523-6496 to learn more about how we can help.
