By Globalization PartnersOctober 2019
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Naturally, your company wants to hire the best and most talented employees. In some cases, finding the best employees means diving into a talent pool that extends beyond the borders of the U.S.
Hiring employees who are not U.S. citizens or residents of the U.S. can make the process more complicated than simply finding a great employee abroad and bringing them over to work. In most cases, if you expect the employee to live in the U.S. while working for you, you will have to sponsor international talent through a visa process.
That said, the complexity of the visa process should not deter you from hiring international talent. After all, you want the best people for your company! In this blog post, we’ll explain more about the U.S. visas available to foreign workers and particularly the H-1B visa, which is intended for specialty occupations that require a high level of specialized knowledge.
Table of Contents
- The Basics of Visas
- Visa Categories
- What is the Difference Between an Immigrant and Non-Immigrant Visa?
- About the H-1B Visa
- What Occupations Qualify for the H-1B Visa?
- How Long Does the H-1B Visa Last?
- How Do You Apply for an H-1B Visa?
- How to Increase Your Chances of Approval
- Are There Limits or Restrictions on the H-1B Visa?
- How Do Families of H-1B Visa Holders Come to the U.S.?
- Is the H-1B Visa Program Going to Go Away?
- The Benefits of Hiring International Specialty Workers
The Basics of Visas
People who are citizens of foreign countries typically need to acquire a visa before they can travel to the United States. The exception to this rule is travelers who come from certain countries and who will be in the U.S. for a short period. Anyone else, particularly anyone who wishes to work in the U.S., needs a visa to do so.
A visa doesn’t guarantee that someone will be allowed to enter the U.S., but it does inform customs officers that a U.S. embassy or consulate has reviewed a person’s background and determined that they are eligible to travel to the country for the purpose stated on the visa.
Although there are several sub-categories, U.S. visas typically fall into two broad groups: immigrant visas and non-immigrant visas. The significant difference between the two is the purpose of the person’s travel to the U.S. An H-1B visa is a non-immigrant visa.
What is the Difference Between an Immigrant and Non-Immigrant Visa?
If someone hopes to travel to and live in the U.S. permanently, they should apply for an immigrant visa. Examples of immigrant visas include those given to children from foreign countries who are being adopted by U.S. families, spouses or fiancés of U.S. citizens, some types of employer-sponsored immigrants, and religious workers.
People who have a permanent residence or citizenship outside of the U.S., but who hope to travel to the country temporarily, can apply for a non-immigrant visa. More than 20 different types of non-immigrant visa are available. Non-immigrant visa categories include tourism visas, student visas, performing artist or athlete visas, exchange visitor visas (such as an au pair visa), and visas for occupations in fields requiring highly specialized knowledge (H-1B).
About the H-1B Visa
The H-1B visa is available to people who perform services in a specialty occupation as well as to fashion models who have a unique ability or merit (H-1B3) and to people who are going to provide services of exceptional talent and value to a Department of Defense development and cooperative research project (H-1B2).
A limited number of H-1B visas are available annually. The employer who wants to hire the international talent needs to apply for the visa on behalf of the employee, rather than the employee applying for the visa on their own.
What Occupations Qualify for the H-1B Visa?
Occupations that qualify for the H-1B visa need to meet specific requirements. To be considered a specialty occupation, the requirements for the job need to include at least one of the following:
- Employees in the occupation need at least a bachelor’s degree.
- The occupation is unique or complex enough that a person needs a degree to perform the duties and responsibilities associated with it.
- Employers typically require a bachelor’s degree or the equivalent when hiring for that particular position.
- The nature of the work is complex enough that the knowledge needed to perform the role is often connected to the attainment of a bachelor’s degree or higher.
Specialty occupations are often found in accounting, IT, science, medicine, and mathematics. In 2017, Amazon, Google, Intel, and Microsoft were among the U.S.-based companies with the highest number of H-1B applications approved. Amazon had more than 2,500 H-1B visa applications approved in 2017.
It is not only the type of work or the complexity of the position that influences whether or not an occupation qualifies for an H-1B visa. The employee your company wants to hire also needs to fulfill specific requirements. Qualified H-1B candidates need to meet at least one of the following criteria:
- They have a bachelor’s degree or higher, from an accredited university or college in the U.S. (the degree should be in the subject of the specialty occupation).
- They have a degree from a foreign university that is the equivalent of a U.S. bachelor’s degree or higher (the degree should be in the subject of the specialty occupation).
- They have a state license, certification, or registration that is unrestricted and that permits them to practice the specialty occupation.
- They have training, education, or have progressively responsible experience in the area of specialty that is equivalent to the completion of a bachelor’s degree or higher and have recognized expertise in the occupation by holding progressively responsible positions in the specialty.
How Long Does the H-1B Visa Last?
As the H-1B visa is a non-immigrant visa and isn’t intended to allow a person to remain in the U.S. indefinitely, it does have a time limit. Generally speaking, H-1B visas are valid for three years. It’s possible to extend the visa beyond the period of three years, allowing a person to live and work in the U.S. for up to six years.
After the six years are up, an H-1B visa-holder may be able to extend their visa for another year if they have submitted an I-40 immigration petition or if their I-40 petition has been approved and they have not yet received their green card.
How Do You Apply for an H-1B Visa?
Individual employees who are interested in working for a U.S. company do not apply for the H-1B visa on their own. Instead, it is the responsibility of the company that wishes to hire international employees to start the application process.
The first step when applying for an H-1B visa for an employee is to complete and submit a Labor Condition Application (LCA) to the U.S. Department of Labor. In the LCA, the employer attests that the wages it will pay the foreign employee will be at least the same (if not higher) than the wages paid to others working at the company in the same or similar positions. The LCA also needs to be filed electronically.
After the Department of Labor has certified an employer’s LCA, it can proceed with the H-1B application process. To do so, it completes Form I-129 and submits the form to U.S. Citizenship and Immigration Services (USCIS). Along with Form I-129, an employer needs to file its approved LCA, documentation that the position qualifies as a specialty occupation, evidence of the employee’s degree status and licensure, and a copy of the contract or agreement between the employer and employee.
Once the employer has submitted the appropriate paperwork and Form I-129 has been approved by USCIS, the H1-B employee needs to apply for an H-1B visa at a US embassy or consulate in a foreign country.
How to Increase Your Chances of Approval
In 2017, President Trump signed an executive order, Buy American and Hire American, which reviewed the program and encouraged tightening the requirements for the H-1B visas. The goal was to ensure the most skilled and highest-paid workers received the visas. While this executive act hasn’t made any direct changes, it is worth keeping an eye on, as requirements may change in the future, and certain actions can boost your chances of getting approved.
Before resorting to the previously mentioned alternatives, you can take a few steps to ensure your chances of approval are as high as possible:
1. Get a Master’s Degree
A master’s degree can improve the applicant’s chances of selection since they get entered into both lottery pools. The reversal of the lottery pools also helps people with master’s degrees, as it should result in 16% more master’s recipients earning visas, which comes out to about 5,340 workers.
2. Watch Your Deadlines
Get your registration and application submitted as soon as possible. Sometimes, USCIS meets its quota of petitions in as little as five days after opening them for submission. Once they reach this amount, they will stop accepting any more petitions, so you’ll want to get the submissions in as soon as possible after the April 1st opening date. Give yourself plenty of time to get things ready beforehand.
You’ll likely need to converse with lawyers, get information from the employee, and consult with your HR representatives. Do this far in advance, so your submission is ready to go, and don’t forget to account for the processing times.
3. Don’t Have the Applicant Pay the Fee
Legally, the company acting as the sponsor must pay the fees for the visa. If USCIS finds out the employee paid them, they may deny the visa. The employee can pay the expedited processing fee if they wish to receive their results sooner. It must be completely of their own accord, though. Many companies will offer to pay this fee for the employee if they want them to get to work sooner, but you cannot ask the applicant to do it.
4. Don’t Double-Dip
If the same company, including any affiliates and partner companies, puts an applicant in the pool twice, you run the risk of getting flagged and earning you an immediate denial. Even if the entities are technically separate companies, if there is any overlap in corporate ownership or control, you risk getting denied.
5. Meet Employer Requirements
Some smaller companies or those who have never done the H-1B process before may have a harder time proving that their business is legitimate. They’ll need the right tax documents and the ability to show they can pay the employee a steady wage. USCIS can ask for a wide variety of documents to prove this. The important part is to prove the company is a sustainable business with long-term plans and projections.
Are There Limits or Restrictions on the H-1B Visa?
A limited number of H-1B visas are available each year, meaning that not every company or employer who wants to hire H-1B workers might be able to. There is a cap of 65,000 regular H1-B visas each year and a cap of 20,000 H-1B visas that qualify for the advanced degree exemption (meaning the employee holds a master’s degree or higher from a U.S. institution).
Although in the past there have been years when the cap on H-1B visas wasn’t reached, more recently, the number of applications has far exceeded the number of visas available. The filing period for H-1B visas is in April of each year. There were 190,000 applications in April 2018 for the fiscal year 2019. In April 2017, for the 2018 fiscal year, there were 199,000 applications.
For fiscal year 2020, USCIS started accepting applications for regular H-1B visas on April 1, 2019. By April 5, 2019, it had reached the 65,000 cap. In previous years, USCIS had first chosen the recipients for the H-1B advanced degree exemption (capped at 20,000). But for 2020, it reversed the process, selecting regular H-1B visas first, before focusing on the advanced degree holders. Applicants with an advanced degree can be chosen at any point during the process, either the regular selection lottery or the advanced degree selection lottery.
How does USCIS decide which of the approved H-1B visa applications end up receiving a visa that year? The process is a random lottery. A computer selects eligible applications. Employees who have a master’s degree or another advanced degree have a slightly higher chance of “winning” a visa, as their applications are included in the regular selection lottery and the selection process for the advanced degree exemption.
How Do Families of H-1B Visa Holders Come to the U.S.?
If a person who receives an H-1B visa has family members, such as a spouse or dependent children under the age of 21, who would like to move to the U.S. with them, those family members will also need to receive U.S. visas.
Unless a person’s spouse is also an employee in a specialty occupation, it is unlikely that they will receive an H-1B visa as well. Instead, they will more likely obtain an H-4 visa, which is designed for dependents. An employee’s family members can apply for their H-4 visas after the employee’s H-1B visa is approved. Family members can’t apply for or obtain their H-4 visas before the employee’s H-1B is approved or obtained.
If family members who obtain H-4 visas are interested in working while they are in the U.S., they can apply for an Employment Authorization Document (EAD). As of June 2019, a decision to remove the EAD program, which would prevent H-4 spouses from working, is under review at the Office of Management and Budget (OMB).
Is the H-1B Visa Program Going to Go Away?
In recent years, certain changes in the U.S. government have led people to wonder if there will be significant H-1B visa changes or if the H-1B visa program is likely to be discontinued entirely. The U.S. president signed the “Buy American and Hire American” executive order in April 2017. The goal of the executive order is to encourage companies to hire American workers. It also sought to tighten the H-1B visa program by limiting who is eligible for the visa and by shifting the focus of the program to the most highly skilled and most highly educated workers.
The “Buy American” policy did lead to an increase in the number of denials of H-1B applications. Interestingly enough, it did not discourage companies from applying for the visa.
Although the number of H-1B visa applications dropped between 2018 and 2019, for 2020 the number of applications was up once again. In April 2019, more than 201,000 applications were submitted.
The Benefits of Hiring International Specialty Workers
With the increased focus placed on hiring American workers, why should your company consider hiring internationally? Hiring international employees can benefit your business in several ways.
A primary benefit of taking a global approach to hiring, and to not limiting your search to U.S. citizens or permanent residents, is that doing so allows you to find the “cream of the crop.” If your company has struggled to find qualified candidates in the U.S. for certain positions, expanding your search to include applicants from around the world can increase your likelihood of finding the person who is truly the best fit for the role.
Another benefit of hiring an international employee for a specialty occupation is that doing so can increase your company’s global footprint. If you hire someone who is bilingual or multi-lingual, you might find that your company can branch out into untapped markets or parts of the world. The person you hire might also have connections in a foreign country that can help you enlarge your customer base or attract new clients.
When your company hires employees from other countries, you are helping to increase the diversity of your workforce. A more diverse workforce is often a workforce that is better equipped to handle and solve problems, as people bring a range of experiences and opinions to the table.
Finally, hiring employees who come from other countries can help to prevent “brain drain” in the U.S. Employees who qualify for the advanced degree exemption have completed their master’s or another degree in the U.S. By hiring them, your company ensures that the skills they developed during a US-based educational program remain in, and help to benefit, a U.S.-based company.
Globalization Partners Can Help You Add International Employees to your Team
Applying for an H-1B visa is just one way that your company can bring on international, highly-skilled, and specialized employees. If you do not want to subject your hiring process to an annual lottery or the whims of USCIS, there are other options.
Working with a global professional employer organization (PEO) is another way to tap into the pool of talented international employees without jumping through the hoops of the visa process. A global PEO, such as Globalization Partners, acts as an employer of record for international workers. International employees perform work for your company, in their own country, but are on the payroll of the global PEO.
If you are interested in working with international employees, request a proposal from Globalization Partners today to learn more about how we can help you go global with your hiring.
For more information regarding hiring international employees, download our Global Hiring Handbook here: