SPONSORED CONTENT: Tips for Navigating the H-1B Cap Process

Ask any U.S. business immigration lawyer what the number-one concern on their minds is likely to be this month, and they’ll probably tell you “all things related to H-1B visa caps.”

The H-1B is a highly limited and coveted U.S. visa category, enabling U.S. employers to hire talented foreign national employees to fill specialty occupational roles. Why so top-of-mind in April, you may ask?  Because the U.S. federal government operates on a fiscal year that runs from 1 October to 30 September. Every year, it announces a congressionally-mandated maximum number of H-1B visas that will be made available, and employers can petition to file applications for those visas 6 months in advance of the start of the fiscal year. Recent history has shown that the number of requested visas almost immediately far exceeds the maximum number available, creating a frenzy of activity in early April and necessitating a computer-generated random selection process – or lottery system – through which those who have petitioned are granted a number.

In addition to the limited total numbers available, there are also strict educational and wage-related criteria that must be satisfied for these visas. For the most part, applicants must have an advanced academic degree that is directly related to the duties required to perform the post, and sponsoring employers must prove that the employee will be compensated at a level in line with the prevailing wage appropriate to the position and geographic region of hire. There are a smaller number of H-1B visas granted to individuals who can be considered exempt from the advanced degree requirement, demonstrating their unique qualifications in other ways, such as equivalent experience.

To put this all into perspective, by April 10, 2019, the United States Citizenship and Immigration Services (USCIS) had already not only reached the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020, using the random selection process to select enough H-1B petitions to assign numbers to to meet the regular cap, but had also determined that it had received a number of petitions sufficient to meet the 20,000 H-1B visa U.S. advanced degree exemption, too, also known as the master’s cap.

With such a short window of opportunity and such unbalanced levels of supply and demand, ensuring the best chances for success when filing an H-1B petition is critical, and it’s never too early to start.  Here are five key tips:

1. Review your hiring guidelines

Establish a set of minimum hiring standards for foreign national employees. Understand how and why your organization is hiring for that role, and why a foreign worker is necessary to fill it. Clearly, a “plan B” is critical, too. If the employee does not win an H-1B number, how is this going to affect the business?  Go into the situation with your eyes wide open!  Here are some important things to know:

• H-1B employees who have a U.S. master’s degree or higher have a higher percentage chance of winning a number in the lottery.  As of January 2019, USCIS reversed the order in which it conducts the lottery to give an advantage to those with U.S. Master’s degrees or higher.
• It may seem obvious, but make sure that the employee’s background, experience, training, degree, etc. mirrors as many of the skills as closely as possible for the position in which you intend to place him or her.
• Research up front if there are other visa category options for which that candidate might qualify (such as the TN or O-1) if the H-1B fails.

2. Carefully develop and document specialty occupation evidence

USCIS has been very focused on the specialty occupation consideration in the past two years. Again, we can’t emphasize enough the importance of establishing – and being able to readily document – a proper connection between the employee’s background and education and the H-1B role. Some key considerations:

• Prepare enough evidence to show why this employee meets (or exceeds) the defined legal standard.
• The employee must have a degree relevant to the role or you should seek an evaluation from a proper vendor to see if their experience and education equates to the proper background.

3. Start filing for the H-1B as soon as possible

It is important to maximize the attempts at winning an H-1B lottery number so the employee may remain working in the U.S.  Don’t wait to attempt the H-1B petition until the employee is running out of work authorization.

• Graduates of U.S. universities obtain work authorization (an Employment Authorization Document – EAD card) to work in their area of study for one year.  If their degree is a Science, Engineering, Math of Technology (STEM) degree, they may extend their EAD for a total of three years.
• Review employees now who may max out of their stay in other visa categories such as the L-1.  Will the employee require the H-1B to keep them authorized beyond the end of their current visa allowable stay?  Consider attempting the H-1B as soon as you possibly can to avoid termination or costly off-shoring.

4. Be aware of unique needs of employees at third party (client) or multiple sites/ locations

USCIS has also recently focused on issues related to an employee’s location. It’s important to note that this is a key concern of the current administration. Be ready by:

• Being able to show that your company is the true employer of the employee for those who may be working at a client location or the HQ of a third party. USCIS will be looking for ample evidence of a bona fide employer/employee relationship. The main emphasis needs to be that you have control over your employee and that your employee is at the third-party site to further your business. The government is concerned about labor for hire in the H-1B context. 
• Having an itinerary ready to document what the employee will be doing, where. This is particularly important if an employee will be working at multiple company sites. It is not enough to know that the employee will need to work out of different locations from time to time – be as specific and detailed as possible.

5. Wages are essential in the H-1B filing

The rules require that the employee be paid the prevailing wage for the metropolitan area or the actual wage, whichever is higher. Understand that:

• The prevailing wage is determined by the minimum education / experience requirements; the metropolitan location; and the scope of the position. Research the offered wage against prevailing wage early and often to stay current.
• An alternative wage survey that meets Department of Labor guidelines may be necessary if the employee will not meet the government prevailing wage criteria.
• Using an already issued prevailing wage determination that matches the minimum requirements of the role to create safe harbor may be beneficial.
• If there is a large mismatch between the prevailing and the employee’s wages, this may be an indicator that the minimum requirements for the role are not accurate. Assess whether or not you have defined the role and responsibilities properly.

The H-1B cap is all about advanced planning and strategy combined with the sheer luck of winning the lottery. Being prepared is critical to success. If you weren’t lucky enough to have your employees selected for processing this year, get started now for fiscal 2021!

Cindy Jen is a Partner in the firm's Silicon Valley office. Cindy focuses her practice on business immigration, providing strategic   counseling on a wide-range of employment based immigrant and nonimmigrant visa matters.

Author bio:

Jill Bloom is a Partner based in Fragomen's Phoenix office. Jill currently represents and manages small, medium and large corporate clients in a variety of industries. She advises on all aspects of business immigration law and additionally, Jill advises on a wide range of family-based immigration issues.