Employment Law Report

Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is intended to make the U.S. market more competitive for U.S. workers while ensuring that “H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”  In practice, the executive order has led to greater application denials and an increase in additional Requests for Evidence, which have cost employers millions of dollars in project delays and contract penalties.  The USCIS also suspended premium processing for H-1B visas, which requires employers to wait longer for the visa approvals.

Some employers are not subject to the annual cap of 85,000 visas.  An exemption is available to U.S. employers that fall into one of the three exemption categories including: Higher education institution; Non-profit organization associated with a higher education institution; or Non-profit research or government organization.

trump tweetOne potential bright spot on the horizon for employers who process their employees’ H-1B visas is a recent announcement from the President.  There may be potential for a pathway to citizenship for H-1B visa holders, an option that is not currently available.  Based on Trump’s brief tweet, it seems as though this remedy will only affect individuals who have already obtained an H-1B visa.

Ultimately, employers can expect an increased wait in the processing of their employees’ H-1B visas and a greater chance of having a petition denied due to the stricter standards and requirement for additional evidence.  These continuing changes make it vital for individuals to be represented by lawyers who have substantial experience with the H-1B visa process.

Please notify us if you would like to discuss the above best practices with the labor and employment team at Wyatt, Tarrant & Combs, LLP.

Marianna J. Michael
Marianna Michael is a member of the Firm’s Litigation & Dispute Resolution Service Team. She assists in the representation of a broad range of clients in a variety of cases including commercial disputes, employment matters, immigration law, and employee benefits matters. Read More