H-1B Visa

• 29 Apr 2019

H-1B Visa

H-1B visa holders in the US are facing problems in switching jobs even if the new job is similar to the old and requires the same exact skill sets.

• The US citizenship and Immigration Services ( USCIS) has denied several applications by the new employer by citing that the new position does not constitute a 'specialty occupation’.
• The US H-1B visa is a non-immigrant visa that allows US companies to employ graduate level workers in specialty occupations. Speciality occupations requires
  • Theoretical or technical expertise in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.
  • Any professional level job that usually requires you to have a bachelor’s degree or higher can come under the H-1B visa for specialty occupations.
• If the H-1B holders starts working elsewhere and the transfer is denied, the person could be 'out of status' with a bar on entry into the US for three to ten years, unless the old employer is willing to take back the worker.
• The US H1-B visa is designed to be used for staff in specialty occupations. The job must meet one of the following criteria to qualify as a specialty occupation:
  • Have a minimum entry requirement of a Bachelor's or higher degree or its equivalent.
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
• H-1B visa holders can bring their spouse and children under 21 years of age to the US under the H-4 Visa category as dependents. An H4 Visa holder is allowed to remain in the US as long as the H-1B visa holder remains in legal status.
  • While, an H-4 visa holder is not eligible to work in the US, they may attend school, obtain a driver's license and open a bank account while in the US.

Capping on Visa

• USCIS sets a limit on how many H1B visas are issued each year.
• These numbers can change as per regulations of the US government. Historically, the cap is placed at 65,000.
• An additional 20, 000 H1B visas are issued for qualified people who have completed a Masters degree from USA. This quota is independent and additional to general 65,000 quota.
• It is done through lottery process.
• Employer prefer H1B visa because applying for a non-immigrant visa is generally quicker than applying for a US Green Card, therefore the H-1B visa is popular for companies wishing to bring in staff for long-term assignment in the US.
• However, because of the lack of available visas employers frequently have to look at applying for other visa categories such as:
  • L-1B for specialized workers
  • L-1A for managers and executives
  • E-2 Treaty Investor visa
  • E-1 Treaty Trader visa
  • E-3 for Australians etc.

Significant changes introduced to H1B visa

• US says H1B visas will be issued to only the most-skilled foreigners or highest-paid beneficiaries
• In July 2018, USCIS adjudicators granted right to reject H1B applications that do not provide the necessary required information when submitted.
• In October 2018, The US initiates deportation of H1B holders with expired visas.
• In October 2018, The US proposes revision of “specialty occupations” definition for the H1B visa.
• In Jan 2019, The USCIS announces it will require petitioners seeking to file H1B cap-subject petitions to first electronically register with USCIS.