H-1B Application Season Is Here!

Do you have a recent college graduate from a foreign country working at your company?  Do you want to continue to employ her after her work authority runs out?  There are few options available to your business to continue to employ her, but if she has a degree in a highly skilled profession and is working in a highly skilled position then, H-1B is your best and, maybe only, option.  Even if your employee has a year or more left on her post-graduate work visa you will want to pursue the H-1B visa this year.

WHAT IS AN H-1B VISA?

Generally, an H-1B visa is available to employers in order to allow foreign nationals to work up to 6 years in the United States (longer if a timely-filed green card application is pending) in a specialty occupation that requires a theoretical and practical application of a body of highly specialized knowledge. The foreign national must meet the minimum qualifications for such a specialty occupation, as demonstrated by obtaining a bachelor’s degree or higher (or its equivalent in work experience) in the field of study required for entry into the specialized occupation. H-1B specialty occupations may include fields such as science, engineering and information technology. The H-1B visa is appropriate for bringing highly skilled workers, who have matching degrees, to work in jobs that require such highly skilled degrees.

WHEN SHOULD I SUBMIT MY H-1B VISA AND HOW MANY ARE ACCEPTED?

The U.S. Citizenship and Immigration Services (USCIS) has an annual limit, or “cap,” of 65,000 H-1B visas each fiscal year.  The first 20,000 petitions filed on behalf of foreign nationals with a U.S. master’s degree or higher are exempt from the cap.  For some countries, like Chile and Singapore, the U.S. has a certain number of visas set aside each year, and some countries are exempt from the H-1B cap altogether (such as Guam and the Commonwealth of the Northern Mariana Islands). Generally, however, most foreign nationals must apply for an H-1B visa if they meet the qualifications.

The lottery window for submitting new H-1B visas opens Monday, April 2, 2019. In previous years this number was met within the first few days and applications that came in after were rejected. In future years there will be a pre-registration system where you don’t have to submit the entire application, but that system won’t take effect until 2020 for the FY2021 season. The chance that your petition will be selected in the lottery varies from year to year based on the number of applications – there is nothing you can do to improve your odds.  If your petition is approved, the H-1B visas will be issued in October of 2019.  If your petition is not selected, you will have to wait until the following April to apply again. Remember, if you are looking to hire someone who has already been granted an H-1B visa in the past 6 years, then you can apply at any time.

HOW SHOULD I PREPARE TO SUBMIT AN H-1B VISA?

With less than two months until the new lottery window opens, it is important that employers start to complete all the necessary paperwork and compile all documents so that they are prepared to submit H-1B petitions within the first week of April, before the cap is reached and they are shut out from submitting the petition.  While there is no guarantee that your petition(s) will be selected, it is important to follow all directions, include all documentation and double check your submissions for accuracy and errors.

Given the complexities of filing H-1B visas legal counsel is normally necessary. 

If you have any questions regarding H-1B visas, immigration issues or would like assistance in submitting visas, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com.  You can also find additional information and tips on immigration issues at https://myhrgenius.co.            

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.