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H-1B Season Is Here Again: A Primer for Beginners

Insight
February 15, 2022
What does the President’s Proclamation Regarding Non-Immigrant Visas Mean for Employers? Background Decorative Image
Insight
February 15, 2022

As more companies are struggling to hire and retain talent in the midst of the “Great Resignation,” I am beginning to get more questions from clients who have never considered sponsoring an applicant for a visa about the feasibility of hiring foreign workers for hard-to-fill positions. Unless an employer is trying to hire a foreign employee who already has a work permit, who works at a foreign affiliate of its company, or is from certain exempted countries (e.g., Canada, Mexico or Australia), often the only available option is an H-1B visa.

An employer can sponsor an employee for an H-1B visa for a “specialty occupation” job which is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Examples of specialty occupations are engineering, mathematics, sciences, economics, medicine, education, certain business specialties, accounting, and law.

What often deters employers from sponsoring applicants for H-1B visas is the annual quota of 85,000 visas (of which 20,000 are reserved for holders of advanced degrees). Given that it is not unusual to have several hundred thousand applications, this can be frustrating for employers who have spent much time and money in the process only to see their petition denied because the quota has been exhausted. Additionally, even when an employee “wins” the H-1B lottery, he or she will have to wait many months before beginning work.

One positive change that United States Citizenship and Immigration Services (USCIS) implemented a few years ago was to create a registration process that allows employers to “register” for the H-1B lottery without having to spend the time and money submitting a complete application. For fiscal year 2022-23 (for employment beginning on October 1, 2022), the registration process will open on March 1, 2022, and run through noon March 18, 2022. The registration process is quite simple and only requires the company to pay a $10 registration fee and submit basic data about itself and the prospective H-1B employee/beneficiary. The lottery will then be conducted before employers are required to file their petitions.

While the registration process has simplified matters considerably, the H-1B process still requires employers and candidates to plan for the future. It can be difficult to engage a candidate for a job that will not begin for another six or seven months, unless the candidate is a recent graduate from a U.S. university and is able to do Optional Practical Training on an F-1 student visa up until the time that the H-1B visa goes into effect. Nevertheless, for many foreign applicants, the H-1B is the only available visa if they want to work for a company in the United States, and they may be willing to wait months in order to do so.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.