U.S. Immigration and the Specialty Occupation Minefield: An H-1B Compendium, Part 1

In his first State of the Union address on January 30, 2018, President Trump articulated his four-pillar plan for immigration reform: path to citizenship for undocumented immigrants brought to the U.S. as children; securing America’s southern border with a wall; ending the diversity visa lottery and instituting a merit-based immigration system; and, limiting family immigration to spouses and minor children.

The talk of a merit-based immigration system is particularly relevant around this time of year, when companies, aiming to remain competitive by supplementing their workforce with foreign-born talent, gear up for the annual H-1B Cap season. In general, the H-1B visa category permits a U.S. employer to petition the U.S. Citizenship and Immigration Services (“USCIS”) for a nonimmigrant worker to work for the company for a temporary period of up to three years in a “specialty occupation” (i.e. an occupation that requires, at a minimum, a bachelor’s degree or its equivalent to perform the duties). The employer must first obtain certification from the U.S. Department of Labor (“USDOL”) that it will pay the worker at least the prevailing wage for the position. The employer must also provide evidence that the worker meets the educational and experience requirements for the proposed position.

The H-1B Cap hysteria stems from the fact that despite being amply qualified for H-1B visa status, only around a third of the candidates will be selected in the visa lottery conducted by the USCIS. This uncertainty is a result of the H-1B Visa Reform Act of 2004, which reduced the annual quota of new H-1B visas from 195,000 to 85,000 just as America’s technology giants such as Amazon, Apple, Google, and Microsoft were accelerating innovation worldwide.

In this multi-part series on H-1B visas, I will explain the H-1B Cap process, describe the H-1B requirements, delve into the complexities of third-party worksites, and illustrate what could happen when employers do not follow the rules.

This first installment focuses on the importance of planning ahead for the H-1B Cap. The intended start date for a cap-subject petition cannot be earlier than October 1, which is the first day of the U.S. government’s Fiscal Year. Because employers are permitted to file petitions up to six months before the intended start date, the first five business days starting on or after April 1 signify the H-1B Cap window. H-1B Cap petitions delivered to the USCIS outside of that window are rejected.

To meet the H-1B Cap deadline, employers must work backward to ensure the evidence is compiled, the forms and support letters are finalized, the filing fee checks are ready, and the USDOL attestation for the H-1B visa, known as the Labor Condition Application (“LCA”), is obtained from the USDOL.

Instead of prioritizing petitions based on when they were received, the USCIS pools together all properly-filed petitions received during the H-1B Cap window. Once the USCIS announces that the H-1B Cap window has closed, it conducts two lotteries: one for the 20,000 petitions reserved for workers who earned their master’s degrees at U.S. colleges and universities, and another for everyone else. Any petition for a U.S. master’s degree holder that was not selected in the U.S. Master’s H-1B Cap gets a second chance for an H-1B visa in the general lottery.

Once the lotteries have been conducted, USCIS deposits the filing fees and sends H-1B Cap receipt notices to employers, and returns the rest of the not-so-lucky petitions, including the filing fees, back to their employers. Next, it adjudicates the petitions over the rest of the summer. Adjudication implies approval, denial, or the issuance of a request for further evidence. Depending on when the petition is approved, the worker can begin H-1B employment for the employer on or after October 1.

In my next post on H-1Bs, I will discuss the substantive H-1B requirements and describe the evidence employers need to gather in anticipation of the non-negotiable filing window.

Read More

Immigration Law