H-1B visa season is almost upon us, and it’s time to prepare. This nonimmigrant visa program has complicated rules and requirements, so we cannot emphasize enough the importance of working alongside an immigration attorney. In the meantime, we’ve created this article to highlight some of the most important things any prospective employer or beneficiary should know.
The H-1B Visa Program is Employer-Sponsored
For the H-1B visa, the employer is the one that must apply on the beneficiary’s behalf. This program is exclusive to occupations that require specialized knowledge and skills, including fields like science, engineering, mathematics, medicine, education, and professional modeling. Recipients must hold at least a bachelor’s degree or an equivalent.
Small Employers Vs. Big Corporations
The H-1B visa has fairly low requirements in some respects but very high in others, particularly because a large portion of approval depends on the employer’s viability as a host. Employers must make four key attestations in order to sponsor an H-1B applicant:
There are no strikes or lockouts taking place at the beneficiary’s proposed place of work
Hiring the beneficiary will not negatively impact the employer’s current workforce
The current employees have been notified of the employer’s attempt to hire the beneficiary.
The sponsoring employer will pay the beneficiary the prevailing wage as a minimum.
Big corporations can afford to prove these things with minimal extra effort. So it’s no surprise that the top two sponsoring employers in 2019 were Amazon and Google, with a combined total of 6,076 approved H-1B petitions (nearly 10% of the total petitions allotted per fiscal year). But for small businesses, meeting these requirements is often prohibitively difficult. According to the Brookings Institute, only about 30% of applications for H-1B visas make it past the preliminary stage, most of which are filed by startups and small employers.
However, the benefit of hiring a highly-skilled foreign worker can be very high. For small businesses, an H-1B petition approval may be the crucial difference that defines their future success or failure. So rather than being daunted by the complexity of completing the H-1B process, small businesses can look to other resources for help. For example, a comprehensive and detailed business plan can provide unparalleled benefits toward demonstrating the employer’s capability to hire a skilled foreign worker.
The Deadline
H-1B visa electronic registration is open between March 1 and March 18, 2023. These registrations will be for the fiscal year (FY) 2024, which will start October 4, 2023.
While it can sometimes take a little longer, most registrants are notified within two weeks of the registration closing date if they were selected. H-1B petitions should then be filed within 90 days of the selection notification. In most cases, this means the H-1B application deadline will be around the end of June 2023.
Because of the strict deadline and complexity of the process, it is recommended that H-1B petitioners will hire an immigration attorney. This will aid the employer and beneficiary in managing all the things that must be submitted for the H-1B petition, some of which require planning in advance.
For example, if the applicant graduated from a non-U.S. institution of higher learning, it’s critical that their H-1B petition prove their degree is equivalent to one from an American institution. But degree evaluation services are often swamped with requests during the narrow window before the H-1B deadline. Without guidance from professionals, details like this can get missed and be the difference between visa approval or rejection.
The Cap
H-1B visas are subject to annual caps set by Congress for each government fiscal year. The cap is currently set at 65,000 H-1B visas. If more people register for the H-1B visa program than the cap allows, the US Citizenship and Immigration Services (USCIS) will conduct a lottery to determine who gets to actually petition for their visa.
However, there is a second selection of only those with an advanced degree, such as a master’s or doctorate, who were not selected in the first round. This will add 20,000 H-1B visas for a total of 85,000.
Because of this cap, any delays in completing the H-1B visa can mean that there’re no longer enough slots available. According to the Wall Street Journal, that’s exactly what happened to an Arizona-based software developer. In the time it took to get their documents ready, the H-1B season was already over, putting both the employee and employer in a tough situation.
Approval Rates
The good news is that approval rates are going up! H-1B approvals dipped below 85% back in 2019, but they’ve rebounded under the guidance of the Biden administration’s pro-immigrant approach. For FY 2021, 96% of H-1B visa petitions were approved, the highest approval rate recorded in a decade! We can likely expect that FY 2024 will see similar approval rates, around 95%. But what about that dreaded 5% category of rejected petitions?
The most common reason one can see their H-1B visa petition rejected is failing to adequately represent how the beneficiary’s qualifications make them suitable for the specialized role the employer outlines. In some cases, it may be true that the H-1B rejectee was qualified, but the job duties were not framed in a way that made this clear to the USCIS.
Especially for small businesses, drafting job duties can be challenging. The level of detail that goes into job descriptions for an H-1B visa petition can only be attained by experienced professionals that understand how to couple current adjudication standards with business principles.
If you need help creating a strong business plan for an H-1B petition or a set of highly detailed job descriptions, Visa Business Plans is here for you. Contact us today to find out how we can help you succeed in your H-1B visa petition.
Visa Business Plans is led by Marco Scanu, a certified coach from the University of Miami with a globally-based practice coaching Fortune 1000 company executives, entrepreneurs, as well as professionals in 4 different continents. Mr. Scanu advises clients on turnaround strategies and crisis management.
Mr. Scanu received a bachelor’s degree in Business Administration (Cum Laude) from the University of Florida and an MBA in Management from Bocconi University in Milan, Italy. Mr. Scanu was also a Visiting Scholar at Michigan State University under the prestigious H. Humphrey Fellowship (Fulbright program) with a focus on Entrepreneurship, Venture Capital, and high-growth enterprises.
At present, Mr. Scanu is the managing partner and CEO at Visa Business Plans, a Miami-based boutique consulting firm providing attorneys and investors with business planning services in the areas of U.S. and Canadian immigration, SBA loans, and others.
[1] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-cap-season
[2] https://usafacts.org/articles/what-h-1b-visa/
[3] https://www.wsj.com/articles/SB10001424127887323980604579027130895875634
[4] https://www.visapro.com/resources/article/h1b-cap-filing-timeline/
[5] https://www.visapro.com/resources/article/h1b-cap-filing-timeline/
[6] https://internationaloffice.berkeley.edu/h-1b_faqs
[7] https://www.visapro.com/resources/article/h1b-cap-filing-timeline/
[8] https://www.wsj.com/articles/SB10001424127887323980604579027130895875634
[9] https://nfap.com/wp-content/uploads/2022/01/H-1B-Petitions-and-Denial-Rates-in-FY-2021.NFAP-Policy-Brief.January-2022.pdf
