Published January 9, 2018
Starting April 1, 2018, employers and their foreign worker employees will get a chance at one or more of the 85,000 H-1B visas available each fiscal year, with the new fiscal year starting on October 1, 2018. The time to start preparing is now, as the supply of available visas is usually exhausted almost immediately, and with special attention and planning needed to combat the obstacles the Trump administration’s “Buy American, Hire American” initiative presents.
For an employer or a prospective foreign worker to have a chance at one of these H-1B visas, the parties must be prepared to have an H-1B visa petition package ready for filing on April 1, 2018 – a day that marks the 6 month point prior to the start of the next fiscal year and the first date U.S. Department of Homeland Security/Citizenship and Immigration Services is authorized to receive H-1B petitions. Again, a filing submitted on April 1, 2018, in general, if accepted (overcoming the 3 to 1 odds against it being selected) and then later approved, allows for the employment of a qualified foreign worker starting October 1, 2018.
In the past few years, the annual statutory allotment of H-1B visas indeed gets snapped up almost immediately, with there being 3 petitions received for every 1 of the 85,000 H-1B visas available – and those numbers are just for petitions received within the first week of April each year. So, without question, interested parties are strongly advised to commence preparations NOW so that as of April 1, 2018, the H-1B visa petition along with all supporting documentation is ready to be filed.
The initial step toward preparing the H-1B visa petition package is the filing for a Labor Condition Application with U.S. Department of Labor. This process does NOT involve a test of the labor market and proving the unavailability of U.S. workers to fill the position at issue. Instead, it entails Department of Labor’s acceptance and approval of an employer’s attestation – submitted online, which includes a variety of promises regarding the prospective employment relationship, such as – that the petitioned worker will be paid at least the “prevailing wage” for the position and geographic region in question, and that the wage level, conditions and benefits will be at least what other U.S. workers at the place of employment receive.
Other fundamental requirements for H-1B eligibility:
1) The Position – the job offer supporting the petition must be based on a bona fide job offer in a “specialty occupation”, usually defined as an occupation where a university degree in a particular field is a typical minimum requirement. There are other avenues of proving that a particular position is a specialty occupation, but meeting this definition is the most common approach.
2) The Worker – the petitioned worker must possess a university degree, or equivalent with an emphasis in a curriculum that directly applies to the position offered. In many cases though, related work experience can be substituted for what is lacking in terms of a worker’s educational background.
3) The Employer – generally, the employer should be well established and have a track record for significant, consistent cash flow. Alternatively, if the company is a new one, it must be well funded. In general, the smaller the size of the petitioning employer, the more the petition will be scrutinized. Does the company have the financial means to pay the salary being offered to the worker? Is this employer sincere in its assertion that the worker will fill the specialty role, or is the petition merely a vehicle to bring the worker onboard in a lesser position? These are the types of concerns DHS/CIS has in mind when reviewing the petitions from smaller or fledgling companies.
As in years past, certain employers and positions are exempt from the limitations of this yearly H-1B cap of 85,000. These include positions with a government agency, a not-for-profit organization focused on research or a not-for-profit organization affiliated with an institution of higher learning (e.g. university). Additionally, H-1B extension requests for previously approved H-1B positions/workers are exempt from the H-1B cap.
Importantly, employers and their prospective H-1B workers are up against more challenges than ever in the Trump era, with every aspect of H-1B filings given extra scrutiny, especially when employers offer a “Level One” wage to satisfy the Department of Labor “prevailing wage” component of the filing. Also in DHS/CIS’ crosshairs are many positions in the I.T. field, such as Systems Analysts – a position that has historically been accepted as worthy of H-1B approval, but is now under assault by DHS/CIS decision-makers.
In conclusion, in order to maximize the chances of success for obtaining approval of a cap-subject H-1B petition, START NOW.
PUBLISHED January 9, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois