Rolling With the Changes: H-1B Visa Rules are Rapidly Evolving

Employment-Based Immigration

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The H-1B nonimmigrant visa is a popular employment-based temporary visa available for foreigners who wish to work in the United States. Unfortunately, the H-1B visa program has been targeted by the Trump administration and the Department of Homeland Security. The rules are changing, and most recent changes have been adverse.

The H-1B Process: A General Outline

Skilled workers in certain industries are, in the judgment of the US Department of Labor, either hard to find in the US labor market, or present only in numbers that fail to meet employers’ demand for their services (nurses, for example). The H-1B visa program was designed to allow US employers to hire skilled temporary workers in these industries.

A US employer can either locate a foreign national abroad or inside the United States. Since this visa is granted for the convenience of the employer, only employers can file an H-1B petition — employees cannot do it.

Proving That the Job is a “Specialty Occupation”

H-1B candidates must be coming to the United States to work in a “specialty occupation.” Under US immigration law, specialty occupations are jobs that require the “theoretical and practical petition of a body of highly specialized knowledge.” Specialty occupations normally require a bachelor’s degree or its equivalent in order to perform competently. With sufficient experience (typically over a decade) a bachelor’s degree or its equivalent may not even be necessary.

The USCIS will expect the applicant to supply sufficient information to allow the USCIS to determine whether the job qualifies as a specialty occupation.

Proving the Existence of an Employer-Employee Relationship

The H-1B visa program was not designed to support independent contractor relationships, and using the H-1B to facilitate such a relationship is considered illegitimate. Consequently, the employer must have the right to control when, where, and how H-1B employees perform their jobs.

Ultimately, whether an employer’s H-1B employees are considered employees or independent contractors is a judgment call made by the United States Citizenship and Immigration Services, a division of the US Department of Homeland Security.

Paying Sufficient Wages

H-1B employees may not be paid less than similarly employed American workers The purpose of this restriction is not so much to protect the H-1B employee as it is to protect American workers from having to compete with low-cost labor from overseas. The employer must supply sufficient wage information to allow the USCIS to make this determination.

The Labor Condition Application (LCA)

Even paying a sufficient wage is not considered enough to guarantee that the employment of foreign employees in H-1B program specialty occupations will not adversely affect the employment market for American workers.

An H-1B program employer must prove this to the satisfaction of the US Department of Labor (DOL) by filing a Labor Condition Application online through the DOL iCert website, before the H-1B petition may be submitted to the USCIS. A certain amount of research may be required.

The employer must include the following representations to the DOL in its Labor Condition Application (LCA):

  • The employment of foreign employees in specialty occupations will not harm the wages or working conditions of similarly employed US workers or adversely affect the US labor market;
  • The employer will pay the candidate sufficient wages (see above);
  • The employer will notify all of its employees., both US workers and alien workers, that an LCA has been filed with the Department of Labor; and
  • The US employer’s industry is not experiencing a strike, lockout, or work stoppage.

These representations are to be taken seriously by the employer because falsifying any one of them could result in heavy fines and even criminal penalties.

Filing Fees

The issue of filing fees for an H-1B visa merits its own section because they are not cheap, especially for a temporary nonimmigrant visa. The employer must pay all filing fees, and it may not ask the prospective employee to pay them.

  • Registration fee: $10;
  • Base filing fee: $555;
  • American Competitiveness and Workforce Improvement Act fee ($750-$1500, depending on employer’s number of employees);
  • Fraud prevention and detection fee ($500, applicable in most but not all instances);
  • $4,000 if the number of employees equals or exceeds 50 workers, more than 50 percent of which are H-1B or L-1employees; and
  • $1,440 Premium Processing fee for expedited USCIS processing services.

All of these government fees add up to an expense of between $1,315 and $8,005 to hire a single H-1B employee, not including fees such as H-4 visa fees for the employee’s family members. This could get expensive quickly if you plan on hiring a large number of H-1B workers.

Filing an H-1B petition

Following is a rough overview of the H-1B application process:

  • The employer makes a written offer of full-time employment, and the employee accepts the offer in writing.
  • The employer submits a Labor Condition Application (LCA) to the Department of Labor, a branch of the US government (approval typically takes about seven days).
  • The employer prepares an H-1B application, together with supporting documentation and information (degree transcripts, etc.), and files it with US Citizenship and Immigration Services together with the various filing fees, by the required filing date.
  • Wait for the results of the H-1B lottery (see below for details). H-1B visa applications must still be selected in a lottery before the USCIS will review them.
  • The USCIS will review the petition if it was selected in the lottery; otherwise, all filing fees will be refunded.
  • The USCIS either approves the application, denies it, or sends the applicant a Request for Additional Evidence (RFE) stating that more information is required. You will likely be given 30 to 90 days from the date of the RFE to research your response and respond in writing.
  • A prospective employee located overseas is required to interview for the H-1B at a US embassy or consulate so that an H-1B visa can be stamped onto his passport to facilitate his entry to the US.

Herman Legal Group is Ready to Join the Battle on Your Side

At Herman Legal Group, we are no “new kids on the block.” Founded in 1995 by nationally famous immigration lawyer Richard Herman, we have developed a reputation for individualized representation and tenacious representation of our clients. Our tenacity comes from the heart — we are strongly sympathetic to the obstacles that immigrants face.

We like the accolades that the word has piled upon us over the years — in 2016, for example, U.S. News & World Report identified us as a national “Best Law Firm” in the field of immigration law. Meanwhile, firm founder Richard Herman has won widespread recognition as a national expert on immigration law through regular contributions to the Huffington Post and other

Frequently Asked Questions (FAQs)

What is the H-1B cap?

The H-1B cap is a limitation on the number of visas that will be issued in the H-1B visa category in any fiscal year, no matter how many companies apply. With limited exceptions, the number of people eligible to receive new H-1B visas has been capped at 65,000, plus another 20,000 for employees with a master’s degree or an even higher level degree such as a Ph.D. Existing H-1B holders who apply for an extension are exempt from this cap.

How long can I stay in the US on an H-1B visa?

As a nonimmigrant visa category, H-1B status can be granted for an initial period of stay of up to three years, extendable once, for a maximum cumulative period of stay of six years. US immigration authorities, however, reserve the right to approve an H-1B for a shorter period, such as a year.

The H-1B Visa: Recent and Proposed Changes

The H-1B nonimmigrant visa program has long been criticized by nationalistic politicians, and this has never been truer than it has been since the Covid-19 crisis hit the US economy. Following is a list of some of the restrictions that have been placed on the H-1B visa.

  • The H-1B’s duration of stay has been shortened to only one year in some cases. About one-third of all H-1B petitions are expected to be affected by the change.
  • On June 22, 2020, President Trump issued an executive order suspending the issuance of new employment visas, ostensibly for economic reasons, that prevented even employment visa holders from entry to the US until 2021. Perhaps fearful of a challenge from the courts, however, the US State Department created numerous exceptions to this harsh-sounding prohibition..
  • The legal definition of the term “specialty occupation” has changed in a way that disadvantages H-1B visa applicants.
  • The USCIS is strictly scrutinizing the employer-employee relationship to prevent independent contractors from posing as employees
  • Entry-level positions have become subject to increased USCIS scrutiny, due to concerns that the employment of H-1B employees with college degrees in entry-level specialty occupation positions was adversely affecting economic conditions for American workers.
  • Ominously, the USCIS is now issuing NTAs (“Notice to Appear”) to H-1B applicants whose visa extensions or permanent residence petitions were rejected. If you receive an NTA, you will be required to appear in immigration court and potentially face deportation proceedings.
  • US companies have been obtaining H-1B visas for employees and them sending them to foreign companies, thereby avoiding the rule that H-1B employees are required to work for US companies. This USCIS, citing the state of the national economy, has been cracking down on this practice.
  • The Trump administration has proposed doing away with the H-1B lottery in favor of a wages-based preference.
  • Many people believe that the H-1B program will soon be canceled altogether for economic reasons. This pessimism is not a consequence of the Covid-19 economy — resistance to the H-1B program has been building for years among government officials of both parties.

Keep in mind that subsequent political developments, such as new government regulations, could drastically affect the status of the foregoing changes.

Get in Touch

No matter what type of immigration problem you face (whether or not related to H-1B visa status), feel free to telephone us at (+1) (800) 808-4013 or (+1)(614) 300-1131; otherwise, complete our online contact form. Either way, we will be happy to schedule you a free initial consultation to answer your questions and ask you for pertinent information.

You are unlikely to run into any serious communications problems — we speak a dozen languages including Arabic, Chinese, Hindi, Punjabi, Russian and Spanish, among others. All told, we maintain 32 offices in 10 US states, Canada, and the Philippines, all of them subordinate to our headquarters in Cleveland, Ohio.

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