H1b Visa Employees: A Source of Skilled Talent for Economic Growth in the US
Most U.S. employers have learned how important professional H-1B workers are for the economy. Even as the experts warn of a possible recession, it is not expected to cause a weakening of our labor market, particularly for highly skilled and professional workers. The tight labor market will likely persist despite major layoffs at industry leaders like Microsoft, because of the great demand for professional employees. According to Bobby Allyn, a business reporter at NPR based in San Francisco, a survey found that 8 out of 10 technology workers who are laid off find a new tech job within three months of starting their search [1].
Most companies agree with the experts’ analysis that there is an insufficient number of workers in the U.S. to meet the needs of the economy. Stephanie Ferguson, the Director, Global Employment Policy & Special Initiatives, for U.S. Chamber of Commerce reported on January 19, 2023 that “the latest data shows that we have over 10 million job openings in the U.S.—but only 5.7 million unemployed workers [2].”
This means that U.S. companies must compete hard to both obtain and retain employees, and it also means that they will have to continue to look beyond our borders for those employees.
Who are H1b Visas For and Availability
H-1B visas [3] are designed to allow workers who have a college degree or its equivalent to work in a professional capacity in the U.S. (8 CFR 214.2(h)(1) [4]. H-1B visas can be granted for up to 3 years at a time, and they can be renewed for up to 3 additional years, which means an H-1B worker can remain employed in the U.S. for 6 years. There are also provisions of the AC21 law (American Competitiveness in the 21st Century Act) that permits some H-1b workers to access “7th year” extensions, even for multiple years beyond the initial 6 years. To be eligible for a “7th year extension”, generally requires that the employer file an LCA/PERM petition (the first part of an Employment Permanent Residency Petition [5]) with the Department of Labor before the H-1B worker starts their “6th year” with their H-1b visa.
As with all highly sought after resources, there is substantial competition for H-1B workers with only a limited supply. USCIS is only allowed to issue 85,000 H-1B visas to U.S. businesses each year under the “H-1B cap” established by congress. Government sponsored non-profit research agencies, government organizations and universities may obtain H-1B visas for workers not subject to this “cap.”
These 85,000 H-1B visas are separated into 2 groups: 20,000 visas for individuals who obtained a Masters or Doctorate level degree from a U.S. college or university; and 65,000 visas for all other qualified H-1B candidates, meaning individuals with a Bachelor degree or its equivalent regardless of whether or not the bachelor degree was earned in the U.S. or abroad.
In March of 2022 USCIS received 483,927 H-1B registrations for the 85,000 visas available [6], so only 17.5% of the prospective H-1B applicants were able to receive the visa.
Despite the odds for being able to obtain a new H-1B visas, it is clear that U.S. companies understand the value that H-1B workers provide to our economy, and are willing to take the necessary steps to access this valuable pool of skilled workers.
Process for New or Initial H-1B Visas under the “Cap”
The process for obtaining an Initial H-1B visa for an employee or for a prospective employee has several different steps. First, an H-1B registration petition must be filed with USCIS by a deadline set usually at the end of March each year. USCIS will then select registrations through a random “lottery” system, which generally requires several selections beginning in April and ending in the summer.
If your registration is selected, you as the employer, will have to obtain a “prevailing wage [7]” for the position that your company is offering the worker. The prevailing wage is the median, or most prevalent wage, paid to similarly employed workers in a specific occupation in the area of intended employment, according to the Bureau of Labor Statistics. This can be obtained from the Department of Labor’s Bureau of Labor Statistics division. Once you have the appropriate “prevailing wage,” you must file a Labor Condition Application (LCA), Form ETA-9035, with the Department of Labor.
After your ETA-9035 is approved, you have to file the H-1B Visa Petition, Form I-129 & I-129H, with USCIS before the deadline set in the case at the time your registration was selected. If you fail to file on time, your H-1B registration may be cancelled and given to another registrant.
USCIS will adjudicate the Visa Petition and once it is approved, your H-1B employee will be able to start working as of October 1 of that same year.
Our Boston Business Immigration Lawyers [8] can assist companies in preparing H1b visa applications either from registration, once the employer has been selected in the H1b lottery or to process an H1b visa transfer. We offer free consultations to employers, so call and schedule your appointment today at 617-523-6320 or request your appointment online [8].
Alternative Options – H1b Visa Transfers for Employees with existing H-1B Visas
While new H-1B employees are certainly a coveted asset in today’s labor market, those are not the only ones. Individual employees, who have been granted an H-1B visa, are allowed to transfer their H-1B visa to a new employer under the AC21 law.
This involves the same application procedures as for a new H-1B visa, except for the lottery registration, as that employee has already an H1b visa slot assigned. Instead, a company can begin with the prevailing wage, then the LCA, and once the LCA is approved, the H-1B Visa Petition, Form I-129 & Form I-129 H, can be submitted to USCIS.
Unlike with the initial H-1B visa, the AC21 law also allows a transferring H-1B employee to begin working for the new petitioning employer, before the Visa Petition has been approved, significantly shortening the time an employer has to wait for the employee to be allowed to work for them. The AC21 law permits the transferring worker to begin their employment, as soon as the I-129 has been filed and accepted by USCIS, instead of having to wait for its approval. This provides for easier access to the H-1B talent pool and a better use of existing employment resources in the U.S.
Our Boston Business Immigration Lawyers Can Help
Our highly experienced Business Immigration Attorneys in Boston [8] can help businesses, employers and entrepreneurs with the entire gamut of business immigration services. These include H1b visas for professionals [3], L visas for intra-company transfers [9], and E visas for investors, treaty traders, multinational managers and executives [10] or employees that possess special qualifications for the operations of a treaty investor, and employment-based Legal Permanent Residency petitions [5]. In over 25 years of service, we have helped countless of businesses in Massachusetts and the U.S. with the utmost professional care and expediency (read our excellent reviews and testimonials [11]) and we look forward to helping you too. Call to schedule your initial consultation today at 617-523-6320 or request your appointment online [8].