What You Need to Know About The H-1B Visa and Employee Sponsorship

Nearly 120,000 international students enrolled in American universities for graduate studies in 2018-19, according to the Institute of International Education, joining another 250,000 international students already engaged in studies. For many, if not most, this experience can be filled with both excitement at the prospect of earning their degree at a highly regarded international institution, and anxiety at the thought of having to navigate the treacherous waters of visa applications and employer sponsorship. In fact, these anxieties have become enough of a burden to spur a decline in international student enrollment in US universities for the first time since the September 11th attacks in 2001. This decline has corresponded with and is driven by the politicization of immigration policy during and after the 2016 presidential election, which has made the United States a less appealing destination for international professionals and – perhaps more importantly – has cast even more uncertainty onto an already cumbersome and opaque visa application process.
 
At the heart of this decline in international graduate enrollment are three cryptic characters: H-1B. To Americans who are unfamiliar with the labyrinthine bureaucracy of the immigration process here, these three characters will likely be unfamiliar, but for many students arriving in the United States from foreign shores, the H-1B Visa is their best (and perhaps only) hope of securing US-based employment upon completion of their studies. The problem: the US government issues exactly 85,000 H-1B visas each year, and only 20,000 of those are reserved for master’s degree students. To make matters worse, over 200,000 H-1B applications are submitted each year for those 85,000 spots, and those winners are selected by a random lottery drawing, so even those international graduates who find employers willing to submit their visa application are still subject to the luck of the draw.
 

So What is an H1B Visa?

In order to be lawfully employed in the United States, foreign nationals must be issued a work visa by the US government. There are over a dozen different types of these “temporary work visas,” including the P-1 (for professional athletes and entertainers), L-1A (for “intracompany transferees who work in managerial or executive positions”), or the R-1 (for religious workers). The H-1B variation of the temporary employment visa is designated specifically for workers in “specialty occupations,” and also includes DoD contract workers from overseas and – somewhat bizarrely – “fashion models of distinguished merit and ability.
 

What are the qualifications?

Unless your candidate is a famous supermodel, the “specialty occupations” provision is the relevant part of the H-1B visa law. In order for your open position to qualify as a “specialty occupation:” the position is required to meet a set of minimum requirements. From the USCIS website:


The job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • 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.

How long does the H-1B visa last?

Immigrants who receive the H1-B visa are permitted to work in the United States for a period of three years, with an option to extend the stay to six years, and their immediate family can join them with a H4 visa as dependents to boot. Visa recipients must also remain with their sponsoring employer for the duration of the visa, or they must find a new employer within 60 days of termination that is willing to take on their sponsorship.
 

What is dual-intent?

Perhaps the biggest attraction of the H-1B is what’s called “dual intent,” which allows visa holders to maintain their current work visa while actively applying for a green card, or Permanent Resident Card. Because of this proviso, which is rare among temporary work visas in the US, H-1B visa holders are able to work in the US while simultaneously pursuing a green card that would allow them to stay in the United States permanently.
 

What should employers know about visa sponsorship?

First of all, it’s important to find out if your company has a visa sponsorship policy. If you want to check quickly how many H-1B visas your company sponsored in recent years, you can use the US Citizenship and Immigration Services website and search your company’s name. The search tools and interface are somewhat clunky, but the data is guaranteed to be accurate.

  • If you can’t find your company in the USCIS database, you can contact your human resources department to learn more. For those companies that do not currently offer visa sponsorship, there are a few things for recruiters to keep in mind:
  • There are options besides H-1B employer sponsorship; see below for more information on Optional Practical Training and other options that allow you to avoid the H-1B system.Internships do not require sponsorship of any kind, as interns are covered under their F1 student visa for summer internship work.
  • It is important to inquire about candidates’ visa status early in the process to avoid confusion – and potential heartbreak – further down the line. This is why many firms ask candidates screening questions like “do you currently have permanent US work authorization without need for sponsorship in the future?”

For those companies willing to sponsor, the first step for a recruiter is – obviously – to find a candidate you’re interested in sponsoring. Fortunately, there are tens of thousands of highly qualified international candidates clamoring for an opportunity to be sponsored, so a willingness to provide that sponsorship can provide an advantage in the battle for the top talent.
 

Understanding the Process

It’s important to understand early in the recruitment process which candidates will require sponsorship, so it’s a good idea to ask that question well before you make a hiring decision. There is also good news for employers interested in sponsoring candidates: recent changes to the lottery process have made it much easier to apply and be informed of H-1B lottery results than ever before. The USCIS recently announced that this year’s H-1B lottery will be the first to use a new electronic registration system. This system will allow employers to complete a simple online registration, pay a simple $10 fee for each prospective employee, and get informed of their lottery outcomes before moving on to filing the full H-1B petition, outlined below.

Here is a step-by-step breakdown of the new process:

Step 1 (March 1 – March 20): Employer completes digital registration and pays $10 fee for each candidate they plan to sponsor.

  • Employers can register at the USCIS website
  • The H-1B registration will be made available on March 1st and run through March 20th

 

Step 2 (March 31st): USCIS informs employers of H-1B lottery results

  • If the number of applications exceeds the cap (which happens every year), a random selection process will be held to determine recipients
  • Results will be released on the applicant’s USCIS account and by email

 

Step 3 (April 1 – June 30): Employer submits full H-1B petition and accompanying documentation

  • Petitioners whose candidates are selected in the lottery will have a 90-day window to submit their full H-1B petiton.
  • Required documentation includes a Labor Condition Application (LCA) approved by the Department of Labor, and Form I-129.
  • Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement. Current versions of forms are available at uscis.gov/forms.

 

Step 4 (2-3 days): Applicant approved or denied by evaluating immigration officer

  • If your candidate has the good fortune to win the H-1B lottery, they will still need to go through one more hurdle: approval by an individual immigration officer assigned to determine whether each candidate is qualified for H-1B status.
  • Immigration officers will conduct a one on one interview with the candidate; preparation for this stage of the process is critical to approval.

 

Step 5 (First Business Day in October): Visa-holder begins work

  • Candidates who successfully complete the full process are eligible to begin their employment at the start of the H-1B “season”, which happens in October every year.
  • This date marks the start of their initial three-year term, which can be extended to six if desired by the candidate and employer.

 

So what happens if a candidate is not selected in the lottery? Thanks to the new electronic registration system, employers lose only the $10 fee per applicant and the time it took to complete the registration forms. Unfortunately, petitioners will then have to wait another year to apply for an H-1B again. If your candidate has another valid visa, they may remain in the United States and apply again the next year. Fortunately, the H1B is not the only full-time employment visa option available to promising international candidates.


What Are The Other Options?

While the H-1B visa is the most popular option for campus recruitment of international students, there are additional options if the H-1B route does not work out:

  • Optional Practical Training (OPT): The OPT programs allows international students with an F1 student visa to work in the United States for up to 12 months after graduation in a field related to their academic concentration. International alumni from accredited US universities who have earned one of the STEM-designated degrees [PDF] are also eligible for a 24-month extension to the OPT program, giving them a total of 3 years of legal employment after graduation. This option doesn’t require employer visa sponsorship for the period of time that the candidate is enrolled in OPT because the program extends their F1 student visa.
  • Other Work Visa Options: Depending on a candidate’s nationality, work experience, and previous accomplishments, they may be eligible for other visa programs. The H-1B1 visa is a subset of the H-1B that is reserved only for citizens of Chile and Singapore. The TN Visa is available to citizens of Canada and Mexico; the E3 visa is for Australians. Especially accomplished international students could qualify for the O1 visa, which is designated for individuals “who possesses extraordinary ability in the sciences, arts, education, business, or athletics,” although it’s important to keep in mind that applicants must have substantial documentation of their extraordinary ability and convince immigration officers of its value.
  • Transfer from overseas office: Promising candidates can still work at your firm without an H-1B, provided they’re willing to put some time in at another international office. Accepting a job at a company office outside the United States can make you eligible for the L-1A or L-1B visas, which are reserved for “intracompany transferees.” To be eligible, the candidate must have been employed for one year before transferring to the United States, and the maximum stay allowed under the L-type visas is seven years.

 

What to Know Going Forward

Heading into the 2020 election, immigration reform remains a hot-button issue in America, and the rules and regulations cited above are subject to change in the near future. The Trump administration has already made a recent change to the H-1B lottery that should actually help graduate-level international students: master’s-level candidates will now be included in the draw for 65,000 visas before the additional draw of 20,000 “master’s” visas, meaning grad students will essentially have two chances to win in a larger pool rather than one in a smaller pool.
 
However, Trump himself has also argued for moving towards a “merit-based immigration system,” although the specifics of how points would be allocated in this system remain sketchy, and there is considerable doubt that such a proposal is legislatively viable. Regardless, the current system is likely to get a shake up in the near future, and it’s difficult to say with any certainty what effect this will have on international graduate students. For now, the H-1B visa and the STEM-OPT program remain the most viable choices for employers looking to attract top international talent in the United States.