What Employers Need to Know Now about H-1B Visas

It is now H-1B visa season, meaning that the U.S. Department of Homeland Security (DHS) is accepting H-1B visa applications from April 1st to April 5th.

The H-1B visa program has come under intense public scrutiny over the last two years. In response to perceived abuses in the H-1B program, President Trump issued the “Buy American, Hire American” executive order, which directed the Department of Homeland Security (DHS) to advance policies to help ensure H-1B visas are awarded to only the most-skilled or highest-paid beneficiaries.

Here’s what employers who hire foreign nationals with H-1B visas should know for this H-1B visa season:.

Foreign Nationals with a Master’s Degree from a U.S. Institution Have Greater Odds of Selection in the Lottery

U.S. companies filing H-1B visa petitions must typically enter a lottery because the law caps the number of H-1B visas that DHS can issue each year. In a typical year, one in three H-1B visa petitions is selected in the lottery, which is held in the first week of April each year.  On January 31, the DHS published a final rule changing the H-1B lottery system. The details of the final rule can be found here.

But the key takeaway for employers is that under the new rule, foreign nationals with a master’s degree from a U.S. institution have a greater chance of being selected in the lottery.

Do Not Rely on Premium Processing

Employers may use premium processing to expedite the processing of H-1B petitions.  Premium processing costs $1,410 and guarantees a decision within 15 days of filing.

Employers should not expect premium processing to be available this year.  Although DHS resumed premium processing for H-1B visas, that decision only applies to petitions filed on or before December 21, 2018.  DHS has not made a decision about petitions filed after December 21, 2018, but employers can expect that premium processing will not be available. DHS suspended premium processing for H-1B visa petitions each of the last two H-1B visa seasons, and the administration’s approach toward the program suggests that this policy will continue.

Compliance is Key in the Current Climate of Enforcement

The Trump Administration has increased unannounced site inspections over the last year, and experts expect enforcement efforts to continue to rise this year. With the change in administration, USCIS also announced new enforcement priorities, which include a targeted approach to detecting fraud.

Some of the enforcement priorities affect larger employers in industries with a high proportion of H-1B workers. Others are likely to affect smaller employers. For example, USCIS is focusing its enforcement efforts on instances where it “cannot validate the employer’s basic business information through commercially available data.”  Employers should expect their attorneys to be particularly rigorous about compliance by advising before, during and after H-1B approval and recommending proactive steps to avoid or minimize financial exposure.

Employers Should Consider an H-1B Visa for Employees Working on an H-4 Visa

DHS grants an H-4 visa to the spouses of foreign nationals who are entering the United States with a spouse who has an H-1B visa. The overwhelming majority of H-4 visa holders are women, and a disproportionate number are from India. Since 2015, the H-4 visa holder has been permitted to obtain authorization to work in the United States by filing Form I-765 requesting an Employment Authorization Document (EAD).

On February 20, 2019, however, DHS sent a proposed rule that would eliminate H-4 work authorization to the Office of Management and Budget for review.

This proposed rule will not become effective until DHS follows several procedures that include accepting public comments and publishing a final rule.  Experts predict that a final rule eliminating H-4 work authorization could come as early as July 2019.  If the H-4 work authorization is eliminated before next year’s H-1B season begins in April 2020, H-4 employees may lack work authorization for a year or more.

Proactive employers can avoid a disruption of their workforce by seeking an H-1B visa for current H-4 dependent spouses this H-1B season, which begins April 2019.