How To Apply for H-1B Work Visa Status
For university graduates and other professionals seeking to work temporarily in the United States, the H-1B program provides an opportunity to work up to six-years in the U.S. in a “specialty occupation” role. The H-1B visa category was created in 1990 with the H-1B process being subject to revisions that both expanded the program and created “H-1B portability” to another employer in 2000.
The process begins after a qualified candidate obtains a job offer from a U.S. employer willing to sponsor the individual for H-1B work visa status. The employer is required to comply with regulations and file a Labor Condition Application with the U.S. Department of Labor. After certification, an H-1B employer-specific petition must be filed with the U.S. Citizenship and Immigration Services (“USCIS”). When the petition becomes effective, the employee is permitted to work for the validity dates reflected on their USCIS notice.
Due to numerical limitations, most years an employer must submit a candidate through a random lottery process. For example, for the last few years, more than 200,000 petitions were submitted for the roughly 85,000 visas (65,000 visas under the regular cap and 20,000 under the advanced degree cap).
FY2022 H-1B Cap-Subject Petition Filing Changes at USCIS
In January 2021, the U.S. Department of Homeland Security (“DHS”) promulgated a rule change that altered the way in which new H-1B visa number recipients are selected.1 Rather than a random selection process that occurs after registering H-1B candidate names, the DHS sought to conduct the upcoming FY2022 H-1B selection process based on salary criteria; awarding new H-1B work visas based on the “highest…prevailing wage level” and following in descending order. The practical result of the above rule would give priority to senior professional workers for new cap subject H-1B visas over international students, recent college graduates and IT professionals…many of whom are entry-level professionals earning Level 1 and Level 2 wages.
On February 4, 2021, the DHS issued a notice stating that this salary based rule is to be delayed until the end of 2021. As a result, the FY2022 H-1B lottery will continue to be a random selection process.
Prevailing wage increases by US Department of Labor
In parallel with the above change in how H-1B cap-subject visa numbers will be allocated in FY2022, separate action(s) by the U.S. Department of Labor (“DOL”) altered occupation-specific wages to increase percentile baselines used for prevailing wage determinations. The DOL’s final rule provides for “transition periods” on both the nonimmigrant (H-1B, H-1B1, and E-3) and immigrant visa tracks to allow employers to adapt to these higher wages during an adjustment period to extend into 2022.
H-1B visa adjudications at DOS consular posts abroad, H-1B Case Status, and Those with Expiring H-1B Status Time
Executive Proclamation 10014 issued on April 22, 2020 and extended by Proclamation 10052, suspended issuance of employment based H-1B, H-2B, J-1 and L-1 visas at U.S. consular posts abroad. These proclamations are scheduled to sunset on March 31, 2021. 1
1. Proclamation 10131
For those with existing H-1B status, or who are concerned about expiring H-1B status, maintenance of that work authorization is essential to avoid the negative consequences of working without USCIS permission. Tracking case status and actively monitoring H-1B status expiration is critical to the visa holder and their employer. In addition, for those who have been in H-1B status for some time, especially those with only a year left of H-1B visa status, there should be an active permanent residence plan in place to permit extensions of H-1B status beyond the six-year “maximum” provided by statute.
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