Tighter scrutiny for H-1B visas
by Dev Banad Viswanath
Feb 13, 2018 | 3958 views | 0 0 comments | 232 232 recommendations | email to a friend | print
The H-1B visa program allows employers in the United States to employ foreign workers in specialty occupations, which is defined as the theoretical and practical use of a body of highly specialized knowledge.

An employee is required to have a bachelor’s degree or higher in the specific occupation, and possible industries include engineering, mathematics, medicine and health, law, accounting, theology, and business specialties.

An individual working under a H-1B visa is strictly limited to work for the sponsoring employer. Congress has mandated a cap of 65,000 for H-1B visas that may be granted every year, but there is also an exception to the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher, which is available for up to 20,000 more visas.

There is one exception that applies to the 65,000 cap: 6,800 visas are set aside each fiscal year for individuals from Chile and Singapore as part of free trade agreements with those countries. Any visas that are not used from this group of visas are then available for H-1B use for the next fiscal year.

Currently, since there is a such a high demand for these very limited visas, petitions are selected randomly by USCIS via computer.

If a foreign national employee quits or is fired by the sponsoring employer, he or she must either apply for a change of status, find another employer, or leave the United States. Individuals may live and work in the United States for up to three years, and then apply for an extension for an additional three years.

If an H-1B visa holder wants to continue to work in the U.S. after six years, they must leave the United States for at least one year before applying for another H-1B visa.

Any dependents of H-1B visa holders, spouse and children under the age of 21, may be eligible for an H-4 visa. An H-4 visa holder may stay in the U.S. as long as the H-1B visa holder maintains lawful status.

They are allowed to attend school, apply for a driver’s license, and open a bank account. An employee with an H-1B visa may travel outside the U.S., but they must have a valid visa in order to re-enter.

The H-1B visa is a dual intent visa, which means a beneficiary may both have a temporary job and the intention to remain in the United States permanently, thus an H-1B holder may also initiate the process of getting a green card or lawful permanent residence.

Once the permanent residence process is started, there may be opportunities to extend the H-1B past the allowed six years. Time not used on H-1B visa within a six-year period can be “re-captured.”

Many employers have noticed that USCIS is disputing or questioning an unusually large number of H-1B visa applications, whether they be fresh applications or a straightforward renewal.

In 2017, there was a 44 percent increase in the number of requests for evidence (RFE) to justify visa applicants. This is the highest number of RFEs since 2009. Applicants whose case had not been resolved by October 1 – the application process begins on April 1 - were sent home.

The stricter rules on H-1B visas corresponds with President Donald Trump’s promises for more rigorous screening of all immigrants. Many employers are now unsure if they can continue to rely on the H-1B visa program, which in turn forced immigration attorneys and their clients to consider alternative options.

Dev Banad Viswanath is an attorney with Banad Law Office.
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