Understanding The United States of America's H-1B Visa Program

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 Overview

• The H-1B visa comes in the Immigration and Nationality Act, section 101(a)(15)(H), enabling U.S. employers to engross foreign workers in specific careers.
• Specialty occupations necessitate specialized knowledge and either a bachelor's degree or equivalent work experience.
• Primarily approved for three years, the visa can be extended up to six years, with provision for reapplication thereafter.

Visa Quota

• Legislative constraints impose limits on the issuance of H-1B visas annually.
• Congressionally mandated caps set the limit at 65,000 visas per fiscal year, with an additional 20,000 reserved for master’s degree or higher graduates from U.S. institutions.
• Employers are tasked with sponsoring individuals for the visa.

Current Statistics

• As of September 30, 2019, USCIS recorded 583,420 foreign nationals holding H-1B visas.
• Since their inception in 1991, the number of issued H-1B visas has seen a fourfold increase.
• In 2022, a total of 206,002 initial and continuing H-1B visas were issued.

Historical Evolution

• The H-1B visa traces its origins to the H-1 visa introduced in the Immigration and Nationality Act of 1952.
• The Immigration Act of 1990 led to the division of the H-1 visa into H-1A (for nurses) and H-1B categories, with an annual cap of 65,000 visas.
• Legislative amendments in 1998, 2000, and subsequent years, alongside the H-1B Visa Reform Act of 2004, 2008, and 2009, introduced further modifications.
• Over time, the United States Citizenship and Immigration Services has continued to refine the visa program through rule changes and adjustments.

Structure of the H-1B Visa Program

H-1B Visa Overview

• An H-1B visa permits individuals to temporarily work in specialty occupations within the United States.

Specialty Occupation Criteria

• Specialty occupations require the application of highly specialized knowledge in various fields, such as biotechnology, computing, engineering, medicine, and the arts.
• Minimum qualification typically includes a bachelor's degree or equivalent, except for distinguished fashion models.

Employment Requirements

• H-1B visa holders must maintain employment with their sponsoring employer to retain their status.
• Upon termination of employment, individuals must either leave the U.S. or seek a change of status or new employment within a specified grace period.

Duration of Stay

• Generally, H-1B visa holders are eligible for a six-year stay.
• Exceptions exist under the American Competitiveness in the 21st Century Act of 2000:
• Visa renewal in one-year increments if an immigrant petition (I-140) is pending after the fifth year.
• Three-year extension if an I-140 petition is approved but final green card processing is pending.
• A maximum of ten years for exceptional Department of Defense project-related work.
• Certain countries may have time limitations, such as one-year increments.
• After six years, individuals without permanent residency must remain outside the U.S. for one-year prior reapplying for another H-1B visa, unless eligible for specified extensions.

Portability and Transfer

• H-1B portability or transfer allows individuals to switch employers without affecting their visa status, provided the new employer sponsors another H-1B visa.

Annual Cap and Exemptions

Establishment of Annual Limit

• The Immigration Act of 1990 set the annual cap at 65,000 for foreign nationals eligible for H-1B status each fiscal year.
• The H-1B Visa Reform Act of 2004 introduced an additional 20,000 visas for individuals holding master's or higher degrees from U.S. universities.

Exempt Categories

• Certain H-1B non-immigrants are exempt from the annual cap if employed or offered employment by:
• Institutions of higher education
• Nonprofit entities affiliated with higher education institutions
• Nonprofit research organizations
• Governmental research organizations
• Contractors working indirectly for these entities may also qualify for exemption, provided their duties align with the organization's mission objectives.

Trade Agreement Quotas

• The Chile – United States Free Trade Agreement and the Singapore – United States Free Trade Agreement established separate proportions
• 1,400 H-1B1 visas for Chilean nationals
• 5,400 H-1B1 visas for Singaporean nationals
• Unused reserved visas are added to the subsequent fiscal year's H-1B annual quota.

Impact on Issuance

• Due to exemptions and rollovers, the number of H-1B visas issued annually often surpasses 65,000.
• Cases include 117,828 visas issued in financial time 2010, 129,552 in financial time 2011, and 135,991 in financial time 2012.

Cap Utilization

• In some years, the cap is not fully utilized, as observed in fiscal year 1996 when processing was temporarily halted due to preliminary quota exceedance.
• Processing resumed upon accurate quota assessment later in the fiscal year.

Application Timeline

• USCIS commences accepting H-1B visa applications on the first business day of April for visas counted against the upcoming fiscal year starting in October.
• Operations can be submitted no more than six months in advance of   the requested launch date.

Beneficiary Categories

• Beneficiaries not subject to the annual cap include current or past holders of cap-subject H-1B status within the past six years.

Electronic Registration Process and Lottery

Preface of Electronic Registration

• In 2020, USCIS enforced a new electronic enrollment process, barring the need for employers to shoot a completely completed H- 1B form package.
• Employers can now submit an electronic registration during March each year, facilitated by the USCIS H-1B Electronic Registration system, for a non-refundable fee of $10.

Registration Process Details

• Employers can create a USCIS registrant account from February onwards, as specified by USCIS.
• Basic information is required for H-1B lottery registration, differing from the comprehensive H-1B petition in April.

Lottery Procedure

• The annual H-1B season officially commences in March, allowing petitioners to electronically register applicants.
• If registrations surpass the quota, a random selection process, known as the H-1B lottery, determines eligible applicants for filing H-1B visa petitions with USCIS.

Notification and Selection

• USCIS notifies named registrants, as substantiated by the most recent H1B season on March 31, 2023.
• During the FY 2024 H-1B lottery, 758,994 registrations were eligible, with 110,791 individuals selected for an H-1B visa.

Filing and Start Date

• Selected registrants can initiate the filing of their Labor Conditions Application to the Department of Labor from April 1, allowing a six-month window before the employee start date on October 1.

Master's Degree Exemption

• Applicants with a U.S. master's degree or higher have dual opportunities for selection in the lottery:
• First lottery: 65,000 visas available to all H-1B applicants.
• Second lottery: 20,000 additional spots, with unsuccessful candidates from the initial lottery entered automatically. Participants without a U.S. advanced degree are only eligible for the former lottery.

Feedback on H-1B Visa Policy

Advocacy for Policy Change

• Proponents of the H-1B visa program argue that its consistent early closure and high application numbers, including the H-1B Lottery over the past decade, reflect robust employment demand.
• They advocate for an increase in the current 65,000 bachelor's degree cap to better accommodate this demand.

Legal Challenges

Tenrec v. USCIS

• The lottery process faced legal challenge in Tenrecv. USCIS, a class action action in Oregon. still, the complainants were unprofitable in their case.

LIU et al. v. MAYORKAS et al.

• Another challenge emerged in LIU et al. v. MAYORKAS et al., filed in the United States District Court for the District of Columbia.
• Over 500 FY 2022 H-1B applicants, who were not selected in March 2021, initiated the lawsuit.
• The primary argument posited that the lottery process contradicts the Immigration and Nationality Act, which mandates the H-1B quota based on individuals.
• Judge McFadden ruled against the complainants, stating that the INA governs the share allocation process but not the lottery methodology.
• Despite the plaintiffs' defeat, USCIS announced its intention on October 23, 2023, to explore changing the lottery to an individual-based system, as proposed by the plaintiffs.

Labor Condition Application (LCA)

Responsibility of the U.S. Department of Labor

• The U.S. Department of Labor (DOL) ensures that foreign workers don't negatively impact stipend or working conditions for U.S. workers.
• Every H-1B petition submitted to the USCIS must include a certified Labor Condition Application (LCA), distinct from the Permanent Labor Certification.
• Purpose of the LCA
• The LCA guarantees that the wage offered to non-immigrant workers meets or surpasses the prevailing wage in the specific employment area.
• It includes an attestation section to prevent the misuse of the program to undermine strikes or displace U.S. citizen workers.

Public Disclosure

• Employers are not mandated to advertise positions before hiring H-1B non-immigrants, but they must inform employee representatives about the LCA.
• LCAs are publicly available records, accessible to any member of the public upon request.
• Copies of these records can be obtained from various websites, including the Department of Labor.

History of the Labor Condition Application (LCA)

• The LCA must be electronically filed using Form ETA 9035E.
• The form's complexity has evolved over time:
• It started as a one-page document in 1997.
• By 2008, it expanded to three pages.
• As of August 2012, it comprises five pages.

Employer Attestations on the LCA

By signing the LCA, the employer attests to the following:

• Fair Compensation:
• H-1B non-immigrants are paid either:
• The same wage as individuals with similar experience and qualifications for the specific employment, or
• The prevailing wage for the occupation in the employment area, whichever is higher.
• Working Conditions:
• Employment of H-1B non-immigrants does not negatively affect the working conditions of similarly employed workers.
• Labor Disputes:
• At the time of application submission, there is no ongoing strike, lockout, or work stoppage in the occupation where H-1B non-immigrants will be employed.
• If such an event occurs after application submission, the employer must promptly notify the DOL's Employment and Training Administration (ETA) within three days.

Employee Notification:

• Each H- 1Bnon-immigrant employed under this operation receives or will admit a dupe of the operation.
• Notice of the operation has been handed to workers and, if applicable, their logrolling representatives.

Prevailing Wage Determination

• H-1B workers are legally entitled to the higher of:
• The prevailing pay envelope for the same occupation and geographical area.
• The wage paid to similarly situated employees by the employer.
• The prevailing wage calculation now considers four skill-based levels, mandated by Congress in 2004, expanding beyond occupation and location factors.

Approval Process and Employer Liability

• Application approvals hinge on employer attestations and submitted documentary evidence.
• Employers are informed of their liability if they replace a U.S. worker.

Employment Authorization Limits for H-1B Nonimmigrants

• Authorized Employer and Activities:

• H-1B nonimmigrants are restricted to working for the petitioning U.S. employer and engaging only in the H-1B activities outlined in the petition.

• The petitioning employer can assign the H-1B worker to another employer's worksite if all relevant regulations, including those set by the Department of Labor, are adhered to.

• While generally permitted, working for multiple employers simultaneously requires each employer to follow the initial application process for nonimmigrant employees.

• Unauthorized Employment Consequences:
• If an H-1B nonimmigrant works for multiple employers and any of them fail to file the necessary petition, it constitutes unauthorized employment, leading to a loss of status for the nonimmigrant.

Investment in U.S. Workforce Training

• Initiatives and Funding:
• TheU.S. Department of Labor's Employment and Training Administration ( ETA) stressed two programs, the High Growth Training Initiative and Workforce Innovation Regional Economic Development( WIRED)
• These programs have received or will receive substantial funding:
• $284 million for the High Growth Training Initiative.
• $260 million for Workforce Innovation Regional Economic Development (WIRED).
• These funds are sourced from H-1B training fees and are dedicated to educating and training the U.S. workforce.

• Funding Impact:
• Reportedly, the Labor Department has allocated $1 billion from H-1B fees since 2001 to enhance the skills and capabilities of the U.S. workforce, as reported by the Seattle Times.

H-1B Tax Status

• Taxation Classification:
• The taxation of income for individuals with H-1B status hinges on their categorization as nonresident aliens or resident aliens for tax purposes.
• Nonresident aliens are taxed solely on income effectively connected with U.S. trade or business and U.S.-source income meeting specific criteria.
• Resident aliens, on the other hand, are taxed on all income, including foreign income.
• Determining Classification:
• The classification is determined through the substantial presence test, which evaluates an individual's presence in the U.S.
• If the test designates the individual as a resident, income taxation mirrors that of any other U.S. person, requiring Form 1040 and relevant schedules.
• Otherwise, non-resident aliens must file using Form 1040NR or Form 1040NR-EZ and may benefit from tax treaties between the U.S. and their country of citizenship.
• First-Year Consideration:
• In their first year in the U.S., individuals may opt to be treated as residents for tax purposes and pay taxes on worldwide income for that year, but this choice is one-time-only.
• Spouses, irrespective of visa status, must provide a valid Individual Taxpayer Identification Number or Social Security number for joint tax filing with the H-1B individual.
• Tax Filing Complexity:
• Tax filing rules for individuals in H-1B status can be intricate, depending on individual circumstances.
• Consulting a tax professional well-versed in foreign tax regulations is advisable.

Social Security and Medicare Taxes

• Withholding Obligation:
• Employers are generally required to withhold Social Security and Medicare taxes from wages paid to employees in H-1B status.
• Social Security Benefits:
• Like U.S. citizens, individuals who worked in H-1B status may qualify for Social Security benefit payments upon retirement.
• Eligibility typically necessitates accumulating at least 40 credits by paying Social Security taxes while working in the U.S.
• However, eligibility for payments may be forfeited if the individual relocates outside the U.S. and belongs to a country with its own social insurance or pension system.
• Bilateral Agreements:
• The U.S. has bilateral agreements with several countries to insure that credits earned in the U.S. Social Security system are honored in the foreign country's similar system, and vice versa.

H-1B and Permanent Immigration Inten

• Dual Intent Recognition:
• Despite being a non-immigrant visa, the H-1B visa is acknowledged as having dual intent, allowing holders to pursue permanent immigration while maintaining H-1B status.
• This implies that H-1B holders can legally seek permanent residence (green card) while remaining in the U.S. on the H-1B visa.
• Pathway to Permanent Residence:

• The H- 1B visa frequently serves as a pathway to endless hearthstone, as companies may take over green card desires on behalf of their workers.

• This process has historically been facilitated by the removal of the requirement to maintain a foreign address for H-1B visa holders in the Immigration Act of 1990.
• Policy Changes and Responses:
• The Trump administration, in 2017, expressed disapproval of using the H-1B visa for permanent residence, signaling intentions to revamp the immigration pathway with systems like the Points-based immigration system.
• In response, some individuals seeking green cards explored alternatives such as the EB-5 visa, which offers more favorable prospects for permanent immigration compared to the H-1B visa.
• Reaction to Visa Abuse:

• To address perceived abuses of H- 1B visas, advocacy groups like U.S. Tech Workers launched opposition juggernauts, including advertising opposition bills in San Francisco's Bay Area Rapid Transit( BART) stations and trains.

H-1B Visa Dependents

• H-4 Visa Eligibility:
• H-1B visa holders have the privilege of bringing immediate family members, including spouses and children under 21, to the United States as dependents under the H- 4 visa order.
• Rights and Privileges:
• An H- 4 visa holder is permitted to stay in the U.S. for the duration of the H- 1B visa holder's legal status.
• They have the right to enroll in schools, apply for a driver's license, and open a bank account within the United States.

Spousal Work Authorization

• Policy Change:
• Effective from May 26, 2015, United States Citizenship and Immigration Services introduced provisions allowing certain spouses of H-1B visa holders to seek unrestricted work authorization in the U.S.
• Application Process:
• Spouses seeking work authorization must submit Form I-765, Application for Employment Authorization, along with supporting documentation and the prescribed filing fee.-5

• Authorization and Work Permit:

• Work authorization in the U.S. is granted only after approval of Form I-765 and issuance of an Employment Authorization Document card.

• Work Permits Issued:

• In 2022, the U.S. government issued 82,616 work permits for spouses of H-1B visa holders, granting them eligibility to work without restrictions in the United States

Travel Requirements for H-1B Workers

• Re-entry to the United States:
• When traveling outside the U.S. (except to Canada or Mexico), H-1B workers must possess a valid visa stamped in their passport for re-entry. If the visa stamp is expired but the i-797 petition is valid, they must visit a U.S. Embassy to obtain a new stamp. Sometimes, additional background checks, known as "administrative processing," may be required, with a supposed duration of ten days or less, though in some cases, it may extend for years.

• Visa Exemption for Costa Rica:
• Individualities with a valid H- 1B visa can enter Costa Rica for tourism for over to 30 days without demanding a separate visa. The H- 1B visa be appropriately stamped in the passport and remain valid for at least six months. also, the passport itself must have a validity of at least six months beyond the entry date into Costa Rica.

Departure Requirements

• Job Loss Provision:

• If an employer terminates an H-1B worker, the employer is responsible for covering the transportation costs for the worker's departure from the United States.

• Grace Periods:

• Upon termination or resignation, an H-1B worker has a grace period of 60 days or until the expiration date on their I-94, whichever is shorter, to secure new employment or exit the country.
• Additionally, there is a 10-day grace period for H-1B workers to leave the United States at the end of their authorized stay. This applies if the worker remains employed until the expiration date listed on their I-797 approval notice or I-94 card.

Application Process for H-1B Visa

• Stage 1: Labor Condition Application (LCA) Filing
• The employer initiates the process by submitting a Labor Condition Application (LCA) to the U.S Department of Labor on behalf of the employee. This application includes various attestations, notably regarding wages, demonstrating compliance with prevailing wage requirements and parity with wages offered to other employees/workers in similar roles within the company.
• Stage 2: Form I-129 Petition

• Upon approval of the Labor Condition Application, the employer proceeds to file a Form I-129 (Petition for a Nonimmigrant Worker) seeking H-1B classification for the employee. Alongside the petition, requisite supporting documentation and fees are submitted.

• Stage 3: Visa Application and Entry
• Following approval of the Form I-129, the employee can commence work with H-1B classification on or after the specified job start date, provided they are already present in the United States in valid status at that time. For employees outside the U.S., the approved Form I-129 and supporting documents are utilized to apply for the H-1B visa. Upon obtaining the visa, the employee can present themselves at a U.S. port of entry for admission, acquiring Form I-94 for entry. (Employees who begin H-1B employment within the U.S. without an H-1B visa, but later leave and seek reentry, must obtain the visa for readmission while on H-1B status.)

Important Official Link

Disclaimer:

The information provided regarding the H-1B visa process is intended for general guidance purposes only. Candidates are strongly encouraged to conduct their own thorough research and seek professional advice as needed before proceeding with the H-1B visa application process. The regulations and requirements related to visas, immigration, and employment eligibility may vary based on individual circumstances, changes in legislation, and updates in government policies. While efforts have been made to ensure the accuracy and reliability of the information provided, it should not be considered as legal advice or a substitute for personalized consultation with immigration experts or legal professionals. Applicants are responsible for verifying the current requirements and procedures applicable to their specific situation before taking any action related to the H-1B visa application process.

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