H-1B Visas 2021

The H-1B visa, for temporary professional workers, is for specialty occupations and fashion models.?The H-1B employee must have at least a U.S. bachelor’s degree or the equivalent.?If a license is required to practice the profession, then the foreign beneficiary must have the state license.?If the H-1B worker is eligible for a license, but for the fact that he or she does not have a social security number, then the H-1B petition may be approved, but only for one year. Health care professionals with a restricted state license will have their H-1B approved for only one year. By the time of the renewal, the H-1B worker should have a full, unrestricted state license to practice their profession.

The job itself must require at least a bachelor’s degree in order to perform the job duties. It is not enough that the foreign employee is highly qualified. So, if a PhD is doing a clerical job that requires only a high school degree, then that does not meet the H-1B requirements. A bachelor’s or higher degree in a specific specialty must be a requirement for the occupation.

However, for fashion models, it is not a matter of having university degrees.?Instead, a fashion model must show that he or she is “prominent” and has national or international recognition and acclaim for outstanding achievement.

The employer must also promise to pay the prevailing wage or the actual wage, whichever is higher.?The prevailing wage is the average wage paid to U.S. workers in the same geographical location, at the same level of experience.?If the employer actually pays a higher wage to its own employees in the same or similar positions, then the employer must pay the higher actual wage.?So, for example, while the prevailing wage in NYC for entry-level Software Developers is $79,914, but the petitioning employer actually pays $80,000 to its entry-level Software Developers, then the employer must offer the same $80,000 wage to the foreign H-1B worker. The employer cannot depress the wages and working conditions of U.S. workers.??If the employer provides health insurance and 401K plans to all its U.S. workers, it must provide the same benefits to its foreign workers.

The employer has to prove that it has a genuine employer-employee relationship with the H-1B foreign worker.?The employer cannot use the H-1B worker as a contractor.

The H-1B petition may be granted for up to three years, and may be extended for another three years.?The total period of H-1B stay allowed is six years.?However, if the H-1B beneficiary has an approved I-140 petition, or a labor certification application pending more than 365 days, and there are no visa numbers available for the green card, he or she may get additional extensions of H-1B status until the priority dates for the green card become current.

National Interest Exceptions are still required for travelers from the E.U., UK, Ireland, Brazil, China, India, Iran and South Africa. So if you are physically located in one of these countries, in order to enter the U.S. with an H-1B visa, you will also need an NIE, unless you spend 14 days in a third country prior to entering.

Trying to obtain an H-1B visa number remains a difficult and fraught process for employers and employees alike who are subject to the H-1B cap – the limit on visa numbers of 65,000 plus 20,000 for US masters degree holders for each fiscal year. The demand consistently way outstrips the supply, leaving many disappointed.?The limit on visa numbers does not apply to public university employers, as well as certain other categories (see my article on cap-exempt H-1Bs, “Stem Degree & Immigration Options with a US University”, https://www.dhirubhai.net/pulse/stem-degree-immigration-options-employment-us-college-heidi-j-meyers/???And regarding F-1 students who want a cap-exempt H-1B, https://www.dhirubhai.net/pulse/f-1-students-who-dont-get-h-1b-visa-number-may-able-work-meyers/.

Regarding the registration process, there is a lawsuit pending in federal district court, Liu v. Mayorkas, Docket No. 1:21-cv-01725, brought by 510 plaintiffs who did?not receive H-1B visa numbers, challenging the USCIS’s new registration process which it recently started using in order to facilitate the H-1B lottery.?The suit alleges that the new registration process effective April 1, 2019, violates the plain meaning of the Immigration and Nationality Act (INA).?The statute requires USCIS to allocate H-1B visa numbers to aliens and not by registrations.?H-1B visa numbers are required to be issued in the order in which H-1B petitions are received.?The new registration process clearly violates the procedure set forth in the statute.

With the new registration process, an individual foreign national can have a limitless number of registrations filed by multiple employers.?Since registrations require only very minimal information, and there is no requirement to show eligibility for the H-1B, this has led to many phony employers filing registrations where there is no real job offer.

As a result, individual foreign professionals found their chances of getting an H-1B visa number greatly reduced due to fraud and abuse of the registration system.?Many of them were already in the U.S. and working for their sponsoring employers, in F-1 status with OPT (Optional Practical Training – work authorization).

Regarding prevailing wages, as in other areas of immigration law, the conflicts between the Trump administration and immigration advocates resembled a long-running basketball game in which both sides ran up and down the court, and we never knew who was winning.?Each time the Trump administration would score with a new regulation, the immigration advocates would then box them out and score by going to federal court.

What is the current state of prevailing wages as of August-September 2021? Currently the prevailing wages are still calculated according to the pre-Trump percentages: Level I (entry level) at 17th percentile; Level II (qualified) at the 34th percentile; Level III (experienced) at the 50th percentile; and Level IV (full competent - managerial) at the 67th percentile, according to the NPWHC guidance issued in November 2009.?The individual prevailing wage amounts are revised upwards each year on July 1st.

That the calculation of prevailing wages is still using the same formula as prior to October 2020, ?is due to a settlement in Chamber of Commerce et al v. DHS, Docket No. 4:20-cv-07331-JSW remanding to DOL and vacating the DOL Final Rule.?DOL is in the process of reconsidering the rule, and could go through the rule-making process to issue a new rule.

Additionally, the USCIS has delayed the effective date of a new rule creating a wage-based selection process for H-1B visa numbers to December 31, 2021.?This rule would have provided that H-1B visa numbers would be limited to those petitions with the highest wages, so basically the H-1B visa numbers would be reserved for those employers offering a Level IV wage to a beneficiary, thus, only those executive, managerial employees who have many years of experience already in their field.?It would have completely shut out F-1 students being offered a professional job at an entry level.

This article is for information purposes only and does not constitute legal advice

Copyright 2021 ? Heidi J Meyers, all rights reserved.