How to Navigate the New H-1B Visa Program

Colorado employers prepare to submit applications to employ foreign professionals by April 6

Changes to the H-1B visa program are impacting employers across Colorado as they prepare to submit applications by April 6, 2018. The H-1B program is designed to allow employers to employ foreign professional workers in specialty occupations. Typically, these employees possess specialty skills and have obtained a post-secondary degree that directly relates to the H-1B position.

In recent years, one of biggest challenges of the process is the lottery selection, given there is higher demand than supply. There are only 85,000 H-1Bs available each federal fiscal year, of which, 20,000 are reserved for those with U.S. master’s degrees or above.  So when, as has been the trend in recent years, more applications are submitted than there are available visas, U.S. Citizenship and Immigration Services (USCIS) holds a lottery. The lottery is a computer-generated process that randomly selects which applications within the category will be processed.

Employers are also now witnessing a shift in H-1B reviews. More specifically, USCIS is reviewing more closely whether an H-1B position is a specialty occupation and has been requesting additional evidence to demonstrate this. Compared to last year, USCIS has issued 45 percent more of these types of inquiries, known as Requests for Evidence (RFE). With these requests USCIS has asserted the following to demand more evidence or as a basis for denial:

  1. The proffered position is not a specialty occupation because the position does not require a bachelor’s degree in a specific field.
  2. The proffered position is not a specialty occupation because the employer’s acceptable fields of study do not relate to each other.
  3. The proffered position is not a specialty occupation because the use of the Level 1 wage means the position is entry level, and therefore, is not complex or specialized enough to warrant an H-1B.
  4. The petition cannot be granted because Level 1 wage is not the appropriate wage given that the duties are too complex.

This shift in H-1B applications is forcing employers to seek outside counsel earlier than usual when navigating and filing H-1B applications.

Employers should begin preparing for FY2019 H-1Bs as early as possible to solidify a well-articulated job description which includes specific job duties in detail with examples. In addition, employers and foreign professional workers should review transcripts and course descriptions, and connect the skills gained from the course(s) to each duty. Given the complex nature of the H-1B process, coupled with the recent, additional obstacles, outside counsel can provide strategic expertise to ease the process for employers.

Sherry Lin is Employers Council’s Managing Attorney of Immigration Services. Sherry joined Employers Council in 2013, and specializes in employment-based immigration law and I-9/E-Verify compliance issues. She also teaches classes and briefing sessions on H-1Bs and other immigration topics. In 2005, Lin obtained her law degree from the University of Denver College of Law. She is also a member of the American Immigration Lawyers Association.

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