Mastering the H-1B Petition Process: Navigating Recent Changes in U.S. Immigration Policy
An overview of the H1B Visa
The H-1B visa is a non-immigrant visa category issued in the United States, which allows U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise on a temporary basis. The concerned occupations generally require a bachelor's degree or its equivalent in a particular field.
The H-1B visa application process and eligibility criteria:
Eligibility Criteria:
Job Offer: You should have a job offer from a U.S. employer
Specialty Occupation: The position must require specialized knowledge and requires at least a bachelor's degree or equivalent in a related field.
Educational Qualification: You must be in possession of the necessary degree or its equivalent in the relevant field.
Employer Sponsorship: The employer must file a Labor Condition Application (LCA) with the Department of Labor and then submit a Form I-129 petition to the United States Citizenship and Immigration Services (USCIS) on your behalf.
Application Process:
1. Labor Condition Application (LCA): The Department of Labor (DOL) must certify an LCA before the employer can submit an H-1B petition to USCIS. This involves attesting that the employer will pay the H-1B worker at least the prevailing wage for the occupation in the anticipated region of employment and that hiring the worker won't have a detrimental effect on the working conditions of similarly employed U.S. workers.
2. Form I-129 Petition: The employer files Form I-129, Petition for a Non-immigrant Worker, with USCIS when the LCA is certified. This form contains information on your qualifications, the job offer, and other pertinent factors.
3. H-1B Approval: Should USCIS accept the H-1B petition, you may apply for an H-1B visa at an American consulate or embassy overseas if you are not currently in the country, or if you are in the country but hold a different type of visa, you may apply for a change of status or an extension of stay.
H1B Petition requirements
H-1B Visa permits the employers to contract foreign specialists on a brief premise beneath indicated conditions. In arrange to qualify for the H-1B non-immigrant visa, the labourer must meet the qualification criteria indicated by the US Government.
Employers can take advantage of the E-Verify office given by the US Citizenship and Immigration Services (USCIS) to decide the qualification of their specialists to work within the US. The application process requires the submission of the Labour Condition Application (LCA) by the employers to the Department of Labour (DOL) before commencing with the H1B Visa application with the USCIS. LCA indicates the points of interest of the work, worker's profile, and the compliance of H-1B Visa rules.
Validity of the H1B
The H1-B Visa has a three-year initial validity duration. People may, however, renew the visa for an additional three years. The visa has a maximum six-year validity period.
H1-B visas are granted for specialized jobs requiring both theoretical and practical skills. Additionally, the person needs to hold a bachelor's degree. The US company is required to justify the decision to provide the visa to the applicant rather than a citizen.
H1B petition rules
Before submitting the petition, firms who are authorized to employ foreign nationals must abide by the H-1B Visa regulations. The petition can be submitted to renew the H-1B visa sponsorship for an additional three years or to apply for a new job that meets the conditions. The following circumstances permit the filing of petitions:
Due to the intricate nature of the task, a skilled worker with a bachelor's or higher degree is required.
In order to apply, employers must submit an approved I-129 Form (a petition to USCIS) and ETA-9035 Form (LCA).
The employee holds a bachelor's degree or above from a recognized US or international college or university.
The employee must present legitimate documentation or certificates attesting to their training, employment history, etc.
There should be no limitations or prohibitions on the worker's ability to work in the US.
The maximum duration for H-1B petitions is three years, although they may be granted for an extra three years.
The H1B visa sponsorship is valid for a maximum of six years after which the holder must leave the country or obtain a new type of visa.
There is an annual cap of 65,000 applications for H-1B petitions, which are divided among several occupational categories.
The pay for the positions should not be less than that of workers with comparable training and experience in a comparable field.
Depending on the employer's profile, there might or might not be a cost associated with the petition.
Of the 65,000 non-immigrant H-1B visas that are awarded annually, 20,000 petitions are accepted for people who are enrolled in a recognized US college, university, or institution.
Documents Required
1. Copy of achievements.
2. Copy of experience.
3. Current employment letter.
4. Copy of educational certificates.
5. Passport copy.
Latest update on the H1B Visa
The 'Buy American, Hire American' philosophy propagated by Trump has given rise to a measure that might amend the Immigration and Nationality Act. The bill proposes changing the master's or higher degree requirement to the $100,000 salary threshold requirement in order to redefine "exempt H-1B non-immigrant." Formerly, foreign workers with a master's degree or higher and an annual income of $60,000 or more might be sponsored for an H-1B visa. However, the new rule will waive the degree requirement while raising the minimum wage to nearly twice as much.
Thousands of H-1B Visa holders and their dependents will have to leave the US if the measure is enacted. Dependents (H4 Visa holders) who are employed in the US will also be subject to the new H-1B visa rule. The holders of H4 visas will lose their jobs and have to leave the country with their families or spouses. Concerns regarding policy changes regarding H-1B visas have arisen for numerous Indian IT organizations and professionals working in the US. The new regulation may potentially result in the mass deportation of labourers who are applying for permanent residence, or "Green Cards." Additionally, the Trump administration has not yet implemented many measures to prevent firms from abusing H-1B visas.
Change in the H1B Application process
A notice of proposed rulemaking (NPRM) was released by the USCIS on October 23, 2023, with the goal of "strengthening integrity" in the H-1B registration procedure. The USCIS is expected to implement a new "beneficiary-centric selection" under the amended regulations, which would go into effect for the FY 2025 H-1B registrations. The NPRM was available for public comment until December 22, 2023.
It is anticipated that the suggested modifications will lessen "fraud and abuse" and guarantee that every beneficiary has an equal opportunity of being chosen. Previous years saw a higher selection rate for beneficiaries with numerous registrations from various firms. Instead of considering each registration, the proposed new selection procedure will take into account every distinct beneficiary found throughout the whole registration pool. Because of this, each beneficiary—even if several—will only be considered once throughout the selection process.
Additionally, the proposed restrictions forbid connected organizations from submitting numerous registrations. This is different from the current regulations, which state that an entity may only register a beneficiary once, while related entities are free to register the same employee more than once.
How to deal with the new changes in the application of the H1B
1. Eligibility Check: Make sure you fulfil all the requirements for the H-1B visa sponsorship jobs, such as getting a work offer from a U.S. business and meeting the educational requirements for the specialty employment.
2. Complete Documentation: Provide all essential supporting documentation for the application, such as employment letters, certificates of education, and any other relevant supporting documentation, accurately and thoroughly.
3. Timely Submission: To prevent any problems or delays, submit your H-1B application well in advance of the deadline. Remember the yearly cap and other time-related factors.
4. Compliance with Regulations: Verify that your employer complies with all applicable regulations, such as accurately and timely submitting the Form I-129 petition to the United States Citizenship and Immigration Services (USCIS) and filing the Labor Condition Application (LCA) with the Department of Labor (DOL).
5. Clearly Stated Job Description: Give a thorough H-1B visa job description that explains in detail how your position falls under the category of a specialty occupation and how it calls for your particular set of abilities.
6. Professional Assistance: To successfully manage the application process and handle any potential obstacles or concerns that may arise, think about obtaining advice from an immigration attorney or certified advisor who specializes in H-1B visas.
Conclusion:
It's crucial to remember that there is an annual quota on H-1B visas, meaning that fewer new visas can be granted per fiscal year. Furthermore, some firms are not subject to the quota, including nonprofit research organizations and higher education institutions. In order to ensure compliance with all criteria and laws, applicants are urged to obtain help from an experienced advisor or immigration attorney, as navigating the H-1B visa procedure can be complicated.
Clara Michael
Clara Michael is a Career Counsellor and Legal advisor at United OPT. she has very good working experience with OPT, CPT and H1B candidates. She has a vast knowledge of recruitment and immigration laws. Through her experience and knowledge, she is giving her best to support the international student community in the USA. Do share the article if you like it.