Why an H-1B Visa is no longer attractive for certain employers

Its officially H-1B season! As many employers know, April 1st through April 7, at least for the last few years, are the days when many employers rush to file non-immigrant visa petitions to bring talent from abroad to work in the U.S. This year won’t be any different, except that the possibility of actually getting a visa may be even less than 30%.

Every year Congress sets an annual cap of 65,000 H-1B visas. H-1B visas are reserved for workers with specialized knowledge in occupations such as engineering, computer science and science, among others. On April 7, 2015, USCIS announced that it received about 233,000 petitions for fiscal year (FY) 2016 and that it would use a random selection process to select enough petitions to meet the statutory cap. For many employers, H-1B visas are no longer attractive because the chances of getting an application selected, last year, was about 30%. The numbers of petitions submitted have increased substantially from prior years (FY2015: 172,500 and FY 2014: 124,000) and there are no signs that the numbers will decrease any time soon.

 In addition to this, Congress increased the filing fees for certain H-1B petitions to $4000. The increase applies to petitioners who employ 50 or more employees in the U.S, with more than 50 percent of those employees in H-1B status. This increase is in addition to the Fraud Prevention and Detection Fee ($500), American Competitiveness and Workforce Improvement Act of 1998 fee ($1500), base fee for the petition ($325) and Premium Processing fee ($1225).

 On top of this, USCIS has experienced backlogs in processing these petitions. Without premium processing fees the employer can expect to wait 8-12 month delay in getting the employee into the US. The wait can be longer if USCIS issues a request for more evidence (RFE). With less than 30% chance of getting an H-1B visa, are there any other options for employers?

 The answer is yes. Employers have a few options and I will go through each one briefly: Employers should start recruiting professionals from Canada or Mexico. Citizens of both countries can get a TN NAFTA professional visa, which allows certain professionals with specific qualifications, usually a bachelors degree, to have a temporary work visa to work for employers located in the U.S. A TN visa is very appealing because the process is very simple, there is no cap and it can be renewed without limitation as long as certain conditions are met. The application process is inexpensive with regards to the filing fees and the applicant can go directly to the U.S. Consulate abroad to apply, assuming that there are no inadmissibility issues.

 A second option is recruiting professionals from Chile and Singapore and apply for a H1B1 visa. This kind of visa is like the H-1B option, except that the cap for these kinds of visas has not been reached. Therefore, there is no need for USCIS to use the lottery system like it is currently used with the H-1B applicants. The process for applying for an H-1B1 is much simpler than applying for an H-1B because the U.S. Consulate in Chile and Singapore may issue the visa without involving USCIS. Therefore, in certain situations, the employer may not need to pay for premium processing to have the worker in the US in a rush.

A third option is recruiting professionals from Australia. E3 visas are reserved for professionals from Australia who are seeking to work in the US in a specialty occupation. Unlike the spouses of certain H-1B visa holders, E3 visa spouses can now work in the US. Although there is a cap of 10,500 issued every year for E3 applicants, the cap has not been reached.

 A fourth option is getting an E visa. These kind of visas were a result of treaties between the US and qualifying treaty countries. If your business is partly owned by citizens of a treaty country, by at least 50%, your potential employee may qualify for an E visa as long as the employee has the same nationality as the other 50% of the company.A fifth option is to apply for an L visa. Many employers have employees abroad and wish to transfer this employee to the US. In this case an employee can apply for an L visa as long as the employer or US company can prove a “qualifying relationship” with the foreign company. The employee must show that he will be working as an executive, work as a manager or has some kind of “specialized knowledge” needed in the U.S.

There are many other options, but unfortunately, in immigration law, there is no such thing as one size fits all. The good news is that there are still options for employers who do not want to relying on an unworkable H-1B lottery system. Don’t wait. Seek a legal professional to assist you with the work visas options for your potential employees oversees.

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