For employers who need to hire foreign talent for STEM or other hard-to-fill positions, an important immigration deadline is approaching.
The H-1B Electronic Lottery Application Window starts March 1 and ends March 6:00 p.m. EST / 9:00 a.m. PST. If you would like one or more applicants to participate in the H-1B lottery, please notify the immigration attorney by March 1.
If the case is selected, the immigration attorney will file a complete H-1B petition with USCIS with a October 1st start date. This electronic lottery process allows the immigration attorney to make a preliminary simplified filing on your behalf. Employers no longer have to go “all-in” with a complete petition filed in advance without knowing if the petition has been accepted within the cap. This should translate into substantial savings for employers.
H-1Bs are for college-educated professionals, such as software developers, engineers, scientists and financial analysts. The annual quota is 85,000 visas and the demand should be two or three times higher.
Employers should check whether they need such a visa either for a possible new hire or to keep a current foreign employee authorized to work who is in optional practical training (OPT) or STEM OPT.
H-1Bs are valid for three years and can be extended for an additional three years. They can also be extended beyond 6 years if the company has sponsored the individual for permanent residency.
General H-1B Requirements
- Must have a University diploma in a field related to the job offer.
- The position must be a specialized profession. This is a profession that requires theoretical and practical application of a body of highly specialized knowledge and obtaining a bachelor’s degree or higher in the specific specialty (or equivalent) as minimum entry in the occupation in the United States.
- Employer must comply with US Department of Labor (DOL) current salary requirements and pay the same wage that American workers receive for the same work or the prevailing wage, whichever is greater.
- The foreign national can only work for the sponsoring employer, but can transfer employment with a new H-1B visa application filed by a subsequent employer.
- The initial H-1B request filed for the first time for an individual is the subject of a annual quota 85,000 visas, and the quota is running out quickly every year. Of the 85,000 visas, 20,000 visas are reserved for those who have obtained a US master’s degree or higher
- For a first-time H-1B petition (where the foreign national has never been in H-1B status before), the employer must file through the H-1B electronic lottery in March and indicate a start date of October 1. quota is quite small compared to demand. Perhaps less than 50% of American masters fit the quota and 30% of bachelor’s applicants.
- A first time H-1B is subject to strict quotas. H-1B transfers are exempt. Some nonprofit and academic employers are exempt from the H-1B quota.
Salary requirements in force
The employer must pay the greater of the prevailing wage or what other U.S. workers in the company doing the same work are paid. The US Department of Labor publishes its salary survey, known as the Office of Foreign Labor Certification (OFLC) Online Data Center Salary Survey at: http://flcdatacenter. com/
Other Nonimmigrant Visa Options
In addition to the H-1B visa, immigration counseling can review your business and talent needs and explore other possible nonimmigrant visas, including:
- E-1/E-2 investor/manager/essential employee
- E-3 Specialist Profession for Australians
- F-1, OPT and STEM OPT student
- Specialized Occupation H-1B1 for Chileans and Singaporeans
- D-1 interns, trainees and scholars
- L-1A executives and managers
- L-1B Specialized Knowledge Workers
- Cover option L for large companies
- O-1 extraordinary ability
- P-1A Extraordinary Athletes and Teams
- P-1B Extraordinary Entertainment Groups
- R religious workers
- TN: NAFTA Labor Trade—Canada
- TN: NAFTA Commercial Workers – Mexico
Employment-Based Immigrant Visa Options (Permanent Residence)
- First preference based on employment.
- EB-1(A) extraordinary ability.
- EB-1(B) Outstanding Researcher.
- EB-1(C) Multinational Leader.
- Employment-Based Second Preference Exceptional Capacity (EB-2) with National Interest Waiver.
- EB-2 graduate degree with national interest waiver.
- EB-2 Advanced Diploma with Certified PERM Application from DOL.
- Third preference based on employment (EB-3) with certified PERM (college degree required).
- EB-3 qualified with certified PERM (at least two years of experience required).
- EB-3 other (unqualified) – less than two years of experience – same priority date as EB-3.
- Annex A for nurses and physiotherapists.
- EB-4 (various categories, including former U.S. Embassy and overseas government employees, Amerasians, religious workers, special immigrant minors, Panama Canal employees, international organizations such as the United Nations, members of the armed forces, spouses or child of an abusive USC/LPR spouse).
- EB-5 investor—direct job creation in own business.