The H-1B visa is a work visa, which is a Speciality Occupations/Temporary Worker Visas, issued to foreign nationals with professional skills employed by U.S. companies. The H-1B visa is valid for a total of six years.
As of April 1, 2019, a new lottery system is being adopted for H-1Bs. The first round of the lottery begins with 65,000 slots drawn from all applicants. Applicants with a master’s degree or higher in the U.S. who did not win the first lottery will move on to the second lottery for the 20,000 H-1B Master Exemption slots. the new lottery order for 2019 has increased the winning rate for applicants with graduate degrees by 16%, according to USCIS.
It is important to note that not all U.S. master’s or doctoral degrees meet the H-1B Advanced Degree Exemption requirements. The requirement is that the university where the master’s or doctoral degree was earned is accredited by a national education accrediting agency and that the university is public or non-profit.
There are two requirements to be met to apply for an H-1B visa. On the one hand for foreign workers, and on the other hand for the job position.
First, the requirements for employees.
First, a minimum of a bachelor’s degree or equivalent (degree certification is required if the degree was obtained from a country other than the United States).
If the required bachelor’s degree is not available, professional training or sufficient work experience may be substituted for the degree. Three years of complete relevant work experience is equivalent to one year of college education, which means that 12 years of relevant work experience is equivalent to having a bachelor’s degree.
Second, the degree needs to be highly relevant to the position.
Job Position Requirements.
(1) The duties of the position must be highly specialized, complex and senior.
(2) The H-1B petition must be filed and paid for by the employer; individuals are not permitted to file.
(3) The salary must meet the Prevailing Wage published by the Department of Labor, which varies by industry and by region.
H1B lottery registration is open from early March to mid to late March, as announced by USCIS.
Then before March, applicants need to do the following 3 things.
When the time comes in March, be sure to submit your registration during the open registration period. It is recommended that you do not register at the last minute to avoid unexpected system failures and miss the open period.
At the end of March to the beginning of April, the lucky ones will receive the winning notification
Then you need to apply for LCA and submit your H1B petition within 90 days (i.e. early April to end of June). Note] H1B petitions filed before or after these 90 days will be rejected directly.
The next step is to wait for the H1B petition result, the smoothest case is to be approved directly and the work status will be effective as early as October 1st.
After winning the visa, many of you must be torn between choosing which way to convert to H1B status, i.e. Change of Status (COS) in the U.S. or leaving the country to go through the Consular Processing (CP) process to get a face-to-face H1B Visa.
It is important to compare the advantages and disadvantages of the two methods from four aspects
First, the possibility of RFE: If you are working with CPT or have problems in maintain status, then if you choose COS, there is a possibility of being asked to RFE; while if you choose CP, you basically will not be RFE.
Second, the processing time of the case: COS completely depends on the speed of USCIS approval, which may take six months or even longer; CP is relatively fast, but after getting the I-797 form, you need to make your own appointment to leave the country for an interview and then enter the country to activate your work status.
Third, the difficulty of the interview: the difficulty of CP interview is relatively low, and you will usually get the visa successfully; if COS is rejected, you can continue to choose the CP way to get the H1B visa, but the difficulty of the interview is greater than the direct CP.
Therefore, usually lawyers will advise applicants who are attending CPT schools to choose CP, but the epidemic in the past two years has made international travel very difficult, so many people insist on choosing COS, and they are finally approved successfully.
How to check the prevailing wage rate in one minute
As mentioned in the previous video, the salary for H-1B positions must meet the Department of Labor’s Prevailing Wage rate, which varies widely by industry and region.
Step 1: Visit the Foreign Labor Certification Data Center website
Step 2: FLC Wage Search Wizard
Step 3: Select the state of your workplace and click Next
Step 4: Select the latest all industries database (database is updated in July each year)
Step 5: Then select the County or Township where the workplace is located
Step 6: Select the job category, then you can click to see the job criteria.
Most of the filing fees for H1B visas are paid by the employer sponsoring the petitioner, typically the H1B fees include.
H1B e-registration fee of $10, I-129 filing fee of $460, anti-fraud fee of $500, ACWIA education and training fee (if the employer has 25 or fewer employees, the ACWIA education and training fee is $750: $750; if more than 25 employees, the fee is $1,500, attorney’s fees, and additional fees that may be incurred: Public Law114-113 fee and expedited processing fee.
The latter two fees are additional fees that may be incurred because the employer is only obligated to pay the $4,000 Public Law 114-113 fee if the employer has more than 50 employees and 50% or more of those employees are in H-1B and L-1 status; only if the H1B petition needs to be processed as soon as possible can the employer choose to pay the $2,500 expedited processing fee. 2500 for expedited processing, and the result will be received within 15 days.
Generally, Chinese attorneys charge between $1500-2500 for H1B visa processing and an additional $1000-2000 for RFE.
Note: The law does not specifically require the employer to pay the employee’s attorney fees and expedited processing fees for H1B processing, but the other fees mentioned above must be paid by the employer and cannot be advanced by the employer and deducted from the employee’s paycheck afterwards.
One trick to reduce the chance of H1B being RFE.
Many people think that their job title in the company and the professional title in the H-1B petition need to be the same, but in fact, the job title in the company and the Occupation Title in the H-1B petition are two different concepts. If you choose an inappropriate professional title in your H1B petition, you will have a lot of trouble getting your H-1B approved.
Job Title is a title in the company, which is determined by the department, position, and level of the company. The Occupation Title is a title established by the U.S. Department of Labor based on the degree level, professional background, and job content of the employee in each industry. If your attorney does not select the most appropriate professional title for you, during the process of application materials review, once the USCIS determines that the applicant’s degree level and job content do not match the selected professional title, then the applicant is likely to receive an RFE or even a denial letter regarding the position’s professionalism (Specialty Occupation).
Be aware that RFEs for Specialty Occupation are the most common RFEs, and are much more likely to occur than RFEs for Day 1 CPT. So you must study carefully with your lawyer the Occupational Outlook Handbook (OOH) of the U.S. Department of Labor, which is an important reference for the USCIS to determine the professionalism of the job title. https://www.bls.gov/ooh/
Generally, lawyers will have many cases in their hands, and when they are too busy, they will give them to their assistants to handle, so you must keep an eye on every detail and never be a handful.
Did you know? An IT giant was approved for 7% of all H1Bs last year
What are the top 9 H1B approved employers in FY2022?
No. 9: Microsoft 1240
No. 8: HCL America 1,299
No. 7: IBM (1,402)
No. 6: Google (1,453)
No. 5: Cognizant (1,481)
No. 4: Wipro (2,121)
No. 3: Tata (3,063)
No. 2: Infosys (5,256)
No. 1: Amazon 6,182.
This is the second year in a row that Amazon has been in first place! Not bad for our non-profit organization’s golden master.
The above data shows how much ICC outsourcing companies abuse the H-1B visa, which has become an outsourcing visa and a key business model for the Indian software outsourcing industry. Indian software outsourcing giants such as Infosys, Tata, Cognizant, etc. have topped the list of H-1B petitions every year for the past decade or so.
We abhor H1B abuse and have made efforts to call for legislation and enforcement agencies to be able to control this behavior, but USCIS has remained indifferent and has not put in place effective measures to curb the malicious practice of lottery registration through multiple companies. But last year’s unprecedented two submarine raids again gave everyone a glimmer of hope.
RFE is Request for evidence, which requires additional materials, i.e., a supplemental document. The most common types of RFEs are as follows.
The most common and problematic RFE for H1B petitions is the specialty occupation, especially for non-technical H1B petitions. The USCIS may question that the position does not require a high degree of theoretical and professional practice, nor does it require a person with a bachelor’s degree or higher.
The response to this type of RFE is to carefully study the Occupational Outlook Handbook (OOH) of the U.S. Department of Labor, which is an important reference for the USCIS to determine the professionalism of the position, communicate fully with the attorney and the company, and prepare all the relevant documents to demonstrate the unique and complex nature of the position. In addition, if you have the conditions, you can also submit an Expert Opinion Letter to prove that your position belongs to the “Specialty Occupation” from the perspective of an expert in the industry. Response difficulty level: ★★★★
Employment Relationship Employer-Employee Relationship
Employees on H1B visas must be fully subject to the employer’s management and organization of work. However, in reality, there are employees who are permanently assigned to the client’s company, so it is easy to ask for additional documents regarding the employment relationship. This is most often the case with IT consulting companies. Since the H1B employee is permanently stationed at the client company, USCIS may assume that there is a true management and control relationship between the client company and the H1B employee.
Response to this type of RFE: Retroactive filings require documents such as a labor contract to prove the true existence of the employment relationship, and documents to prove that the employer is indeed managing and supervising your work. Response difficulty level: ★★★★☆
Position Necessity Availability of Work (On-site)
This type of RFE is primarily due to the USCIS questioning whether the employer really needs the position and whether the employer can provide the workload to allow the H-1B petitioner to do the full three years. Employers who are small companies or service outsourcing companies are likely to receive these RFEs.
Response: Gather information about the company’s business plan, other employees in the same position in the company, and the business cooperation the company is currently conducting to prove the need for the position, prove that the cooperation with the third party is not a short-term cooperation, and provide the company’s plan for your work schedule to show that the company has enough tasks for you to do. Response difficulty level: ★★★★★★
Maintenance of Status
This type of RFE is mainly for H-1B applicants who have used CPT work permits and have encountered this issue more often.
The response is to submit all valid evidence that you have maintained your Full-time Student status. You can ask the school to provide transcripts, attendance records, proof of tuition payment, documents related to CPT approval, etc.; ask the CPT employer to provide proof of employment, stating the period of employment and job function to prove the relevance of the job to your major; provide your own bills for various expenses incurred while attending school, such as hotel check-in records, parking tickets, toll receipts, meal receipts, etc. to prove Attendance. Difficulty level: ★★★★
The latest study by the National Foundation for American Policy (NFAP) reports that the denial rate for new H-1B initial employment petitions for 2021 (year ending September 30, 2021) has dropped to 4%, which is significantly lower than the 13% denial rate for FY 2020. Denial rates in earlier years were much higher – 21 percent in FY 2019 and 24 percent in FY 2018.
“The 4 percent denial rate for new H-1B petitions in FY 2021 is comparable to the level before Trump took office, when the administration instituted a number of restrictive policies for international students, OPT and H1Bs, most of which were thankfully later ultimately ruled illegal by the courts. In addition, the denial rate for H-1B renewals was only 2% in FY 2021 compared to 7% in FY 2020, and a surprisingly high 12% for H1B renewal employment in FY 2018.
By observing the decline in the denial rate for initial and renewal H1B petitions, there is reason to believe that the approval rate will further improve in the coming years!
H1B lottery abuse has always been abhorred by those H1B petitioners who strictly follow the rules, and there are many private organizations, law firms and individuals who are trying to call for and promote the importance of fair and reasonable allocation of H1B slots. But the legislature and USCIS have never come up with proven measures to ensure that the H1B lottery is fair and equitable, so what are the reasons? I would like to share my personal view with you.
H1B abuse is played most smoothly by those large ICC (IT consulting company) companies, in the last fiscal year, the top 5 ICC companies got a total of 13,220 H1B slots, the direct beneficiaries of H1B abuse are those South Asian (mainly Indian) IT workers, but the most fundamental beneficiaries are the giants of the US IT industry.
ICC is essentially a code broker, they have close contact with many US head IT companies, when these big companies are in urgent need of people, ICC will act as a contractor and give the resumes of their own coders who are suitable for each other’s job requirements to these companies, so that they can make a selection. This greatly saves the time and effort of HR screening people in US companies, and more importantly, ICC contractors can greatly save labor costs.
It can be said that H1B abuse can balance and ensure a win-win measure for South Asian coders, ICC, and IT majors. In the absence of capital force, it is impossible to have new bills and amendments to restrict H1B abuse, which means that the current class action lawsuit is basically an ant tripping over an elephant. Under the “Buy American and Hire American” atmosphere of the Trump administration, the Department of Homeland Security announced in the Federal Register the details of the H1B lottery reform, replacing the previous H1B lottery with a higher or lower wage level allocation of visas, with higher wage level foreign workers receiving priority. The new policy will directly benefit large foreign workers. This new policy will directly benefit foreign workers in large factories, and can help preserve the jobs of Americans in traditional industries, and to some extent limit the ICC’s abuse of the H1B lottery, which will touch the interests of large IT companies. Silicon Valley being the hardcore Democratic vote, the new president will certainly not let them down and the H1B lottery by salary must be abolished. The H1B abuse in the fundamental interests of the big money makers will probably continue, but it is comforting to know that multiple rounds of retroactive lottery (submarine) will also continue, while the government will formulate more new policies like the “direct green card for PhDs” to ease the pressure of the lottery for H1B applicants. And let’s not forget that Biden promised during his campaign to support increasing the number of visas for skilled workers. So the private sector might as well turn the tide and push for more H1B visas.