Overview of the H-1B Visa Category and summary of the proposed changes to the lottery process that may go into effect for the 2021 H-1B cap year.

• I am planning to change employer (H1B transfer completion) by mid Nov. Can I change Petitioner name, Receipt no in 1st DS-160 (which has old employer) or need to create a new DS-160 and book new time slot after H1B transfer? How can I know the available time slots in advance for Dec. As I cannot observe them if I don’t pay for visa fees.
• After months of low-key response, the H1B visa scheme, which was once most sought after among Indian professionals, is suddenly appearing to be in demand again, with just 800 of the 65,000 slots remai.

Addition of some cap-exempt slots for people with graduate degrees Prior to this Act, there were 195,000 slots available under the annual H-1B cap. Currently, there are 20,000 H-1B “Master’s cap” slots available for those who have earned a U.S. Master’s degree from an accredited university in their field of endeavor. There are 65,000 “regular cap” slots that are open to all qualified applicants. This to be discussed in further detail below. Employer Requirements.

What is an H-1B Visa?

An H-1B Petition allows companies in the United States to employ foreign workers in positions that require at least a bachelor’s degree (or its equivalent) in the field of endeavor. This is important. The USCIS is highly scrutinizing cases where the Beneficiary’s degree field does not “closely” match the field of work.

Petitions can be filed for beneficiaries already in the U.S. in another valid status, such as F-1 student status, as well as those outside the U.S.

If the Beneficiary has never held H-1B status in the past, they will likely be subject to the annual H-1B Cap limitation unless they will work for an institution of higher education, certain affiliates of an institution of higher education, or a governmental non-profit research organization.

Currently, there are 20,000 H-1B “Master’s cap” slots available for those who have earned a U.S. Master’s degree from an accredited university in their field of endeavor. There are 65,000 “regular cap” slots that are open to all qualified applicants. This to be discussed in further detail below.

Employer Requirements

Employers must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor confirming that the employer will pay the local prevailing wage or the wage offered to similarly employed U.S. workers, whichever is greater.

H1b Visa Slots Availability Guide

To file the H-1B Petition, the employer must, among other things, demonstrate that 1) the position is a specialty occupation; 2) that an employer-employee relationship will exist between the parties; and 3) that the employer has the ability to pay the wage offered as per the certified LCA from the DOL.

Employers should seek advice and guidance from a Board-Certified Immigration Attorney to help ensure their company will meet these requirements prior to filing. Please note that individuals cannot petition for themselves.

Beneficiary Requirements

The Beneficiary must have earned at least a Bachelor’s level degree in their field of endeavor at the time of filing the H-1B petition. If they are in the U.S. and seeking a “Change of Status”, they must also establish that they are maintaining valid status at the time of filing or they must process their nonimmigrant visa application in their home country. This is referred to as “Consular Notification” and also applies to Beneficiaries that are not in the U.S.

How Long Can You Stay in the U.S. in H-1B Status?

If you’re an H-1B nonimmigrant, you can be admitted to the United States for up to 3 years. In some cases, your time period can be extended, but typically, you can’t go beyond a total of 6 years. There are some exceptions available, though, which your business immigration attorney can explain to you.

What if You Leave Early?

If your employer terminates you before the end of your period of authorized stay, your employer is liable for the reasonable costs of your return transportation. Your employer is not responsible for the costs of your return transportation if you voluntarily resign or quit.

What About Families On H-1B Visas?

If you’re married, or if you have unmarried children under the age of 21, you may be able to bring your family as H-4 nonimmigrants.

Premium Processing for H-1B Visas

Premium processing, a service the federal government provides that promises employers a judgment within 15 days, may be an option for this year’s H-1B visas that are subject to the cap. U.S. Citizenship and Immigration Services charges employers an additional fee of $1,410 for this faster processing service. The USCIS will issue guidance on premium processing service in the coming months. Stay tuned!

A Reversal Of The H-1B Selection Process That Was Implemented in Fiscal Year 2020

For Cap Year 2020, the USCIS reversed the order that H-1B visa cap cases are selected.

Previously, the government used a lottery process to award visas to 20,000 advanced degree holders first. Those who didn’t win a spot in the lottery were able to get a second chance with all the other H-1B visa petitioners.

Now, the USCIS runs the regular H-1B cap lottery first with all advanced degree earners included. Then, the remaining applicants will go into a second lottery where only U.S. Master’s degree candidates will be considered.

The first lottery is for 65,000 people. The second-chance lottery will fill the remaining 20,000 spots available. USCIS projects that this new process will result in more than 5,300 additional H-1B visas going to people with advanced degrees.

What About The Proposed Changed to the 2021 H-1B Cap Season?

The USCIS will likely implement an online H-1B registration system for the upcoming 2021 cap season. The system will require that employers submit an online registration form for each prospective H-1B candidate before filing season begins in April, possibly as early as January 2020. The public will receive 30 days notice of the opening of the registration period.

USCIS will conduct a lottery of the registrations and will send selection notices to successful Petitioners, who would then be permitted to file full H-1B petitions for adjudication on behalf of Beneficiaries whose registrations were selected. USCIS has also proposed to charge a $10 fee for each registration.

H1b Visa Slots Availability Card

Registrations will consist of providing basic information about the employer, employee, job and the employee’s education. This program will likely give preferential treatment to Applicants with U.S. Master’s degrees in their field.

Stay tuned for up-to-date announcements.

Should You Work With an Attorney for an H-1B Petition?

Yes! If your company is interested in hiring foreign workers, working with a board certified Immigration attorney helps ensure that your paperwork is filled out and filed properly and timely. Your lawyer will answer your questions and provide you with case-specific legal guidance that you won’t be able to get online.

If your company is considering bringing in foreign workers, we may be able to help you. Get in touch with us today to find out how we can help – and we’ll be happy to answer all your questions about the new H-1B visa processes taking effect in FY 2020.

About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Texas including Dallas Fort Worth, Houston and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

The H-1B Visa Reform Act of 2004 was a part of Title IV of the Consolidated Appropriations Act, 2005 (sometimes also called the Omnibus Appropriations Act of 2005) in the United States that focused on changes to regulations governing H-1B visas.^[1][2][3] It was a successor to previous legislative changes affecting the H-1B, namely: the Immigration Act of 1990, American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, and the American Competitiveness in the 21st Century Act (AC21) of 2000.^[3][4] The Consolidated Appropriations Act was signed by George W. Bush, then President of the United States, in early December 2004.^[3]

Title IV of the Consolidated Appropriations Act had another component pertaining to immigration regulations, namely the L-1 Visa Reform Act of 2004, that pertained to L-1 visas.^[1]

Provisions[edit]

Addition of some cap-exempt slots for people with graduate degrees[edit]

Prior to this Act, there were 195,000 slots available under the annual H-1B cap. Nonprofit research institutions were exempt from the cap, and people who had been counted towards the cap already (such as if they were transferring jobs or extending a 3-year H-1B by another 3 years) could apply without being counted against the cap as long as they weren't going over their 6-year limit.

The H-1B Visa Reform Act of 2004 effectively reduced the cap from 195,000 to 65,000 visas, but declaring exemptions for the first 20,000 applicants each year with graduate degrees. Specifically:^[3]

• The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000.After those 20,000 slots are filled, USCIS is required to count thosecases against the cap for the remainder of the fiscal year.^[5]
• This would begin starting FY 2005 (October 1, 2004 - September 30, 2005) and applications for this could be submitted starting March 8, 2005. For FY 2006, this would apply right from the beginning of applications opening up (i.e., the first week of April 2005).
• Nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004.

Changes to fee structure[edit]

The fee structure was changed as follows:^[3][6]

• There was no change to the rules governing the base filing fee, that had to be included with all applications (this fee would increase periodically due to inflation—as of 2015, the fee stands at $325).
• The structure of the additional fee introduced by the American Competitiveness and Workforce Improvement Act (ACWIA) and modified by the American Competitiveness in the 21st Century Act (AC21) was changed from its original value ($500 at the time of the creation of the fee by the ACWIA, and $1000 after the passage of AC21) to the following payment structure:
  • Companies employing 26 or more full-time employees were required to pay a fee of $1500.
  • Companies employing 25 or fewer full-time employees were required to pay a fee of $750.
  • Nonprofit research institutions applying for the uncapped H-1B continued to be exempt from this fee (this clause was present in ACWIA and AC21).
  • The allocation of the money raised between various US agencies and programs was also changed.^[2]
• An additional anti-fraud fee of $500 was also instituted, applicable to all except those applying for a three-year extension of an existing H-1B status.
• Employers could optionally pay a $1000 fee for premium processing, so that they could get to know quickly if the application was approved.

Renewal of LCA attestation requirements and expansion of DOL investigative authority[edit]

The Labor Condition Application (LCA) attestations that were introduced for H-1B-dependent employers and those who had committed willful misrepresentations recently were renewed. These attestations continue to be required as of 2015.^[3][4]

Elimination of the '95% rule' for the prevailing wage requirement[edit]

The '95% rule' for prevailing wages, where employers needed to pay only 95% or more of the prevailing wage, was eliminated: employers were now required to pay at least 100% of the prevailing wage.^[3][4]

Changes to Department of Labor investigative authority[edit]

The DOL was given authority to investigate when the Secretary of Labor personally certifies that there is reasonable cause to believe that the employer is not in compliance and authorizes the investigation, or when a credible source provides information that includesallegations that within the past 12 months an employer has willfully failed to meet an LCA condition, has engaged in a pattern or practice of violations, or has committed a substantial failure to meet an LCA condition that affects multiple employees.^[3][4]

Formal lines of defense for employers[edit]

Employers were given two recognized, standard lines of defense they could use in case of any investigation or identification of problems with their applications:^[4]

• Good Faith Compliance Defense: H-1B employers are considered to have complied in good faith with the program requirements notwithstanding a 'technical or procedural failure' to meet such requirements, if the employer:
  1. Made a good faith attempt to comply;
  2. Voluntarily corrected the failure within 10 business days of having it explained by the DOL or another enforcement agency; and
  3. Has not engaged in a pattern or practice of willful violations.
• Recognized Industry Standards Defense: H-1B employers that have established that the prevailing wage used was calculated consistent with recognized industry standards and practices will not be assessed fines or penalties for prevailing wage violations.

References[edit]

1. ^ ^ab'Consolidated Appropriations Act, 2005'. United States Government Publishing Office. December 8, 2004. Retrieved March 29, 2015.
2. ^ ^abXie, Jeff (December 21, 2004). 'H-1B Visa Reform Act of 2004 -- H.R.4818'. uslawnet.com, Xie Law Offices, LLC. Retrieved March 29, 2015.
3. ^ ^abcdefgh'USCIS TO IMPLEMENT H-1B VISA REFORM ACT OF 2004'(PDF). United States Citizenship and Immigration Services. December 9, 2004. Retrieved March 29, 2015.
4. ^ ^abcde'Fact Sheet #62A: Changes made by the H-1B Visa Reform Act of 2004'(PDF). United States Department of Labor. July 1, 2008. Retrieved March 29, 2015.
5. ^Batalova, Jeanne (April 7, 2010). 'H-1B Temporary Skilled Worker Program'. Migration Policy Institute. Retrieved March 29, 2015.
6. ^'H-1B Benefit Fraud & Compliance Assessment'(PDF). United States Citizenship and Immigration Services. September 1, 2008. Retrieved March 29, 2015.