A recent survey of more than 500 HR professionals found that 86% of companies in the United States “hired employees outside of the US for roles originally intended to be based inside the country” because of the restrictions surrounding H-1B visas.
If you’re planning to hire a foreign worker for your company in the United States, you probably have already looked into the H-1B visa. Because of the uncertainties surrounding visa availability in the US, many companies have begun hiring talent abroad using an EOR service like Via.
In this post, we’ll break down what the H-1B is, who qualifies, and everything foreigners and employers need to know about the application process.
The H-1B visa is a non-immigrant visa category in the United States that allows US employers to temporarily hire foreign workers in specialty occupations.
A specialty occupation is defined as an occupation that requires a bachelor's degree or higher in a specific field, such as engineering, mathematics, science, or computer programming.
Here’s a look at some new developments for H1-B visas for 2023.
In March of 2023, a bill was reintroduced that, if signed into law, would further restrict the availability of H-1B visas. The bill limits 1) what is considered “specialized knowledge” and 2) who is eligibile to apply for the visa.
Although Senator Dick Durbin (D-IL) proposed the bill in hope of preserving jobs for American citizens, many companies have already stated that the bill could actually push companies to increase hiring in other countries, if passed.
US District Judge Tanya Chutkan recently dismissed a lawsuit filed to end authorization cards to spouses of H-1B visa holders. Up until now, many spouses of H-1B visa holders were moving to the US but unable to gain work authorization. The ruling was heavily praised by immigration rights advocates.
To be eligible for an H-1B visa in the United States, a foreign worker must meet the following criteria:
Specialty Occupation: The job must qualify as a "specialty occupation," which means that it requires at least a bachelor's degree or higher in a specific field of study that matches the qualifications for that job.
Education: The foreign worker must have a bachelor's degree or higher in the relevant field of study or the equivalent work experience.
Employer sponsorship: The H-1B visa is an employer-sponsored visa, which means that a US employer must sponsor the foreign worker for the visa.
Employer-employee relationship: The employer must establish an employer-employee relationship with the foreign worker, which includes the ability to hire, fire, and supervise the worker.
Labor Condition Application (LCA): The employer must file an LCA with the Department of Labor (DOL). This document certifies that the company will pay the foreign worker at least the prevailing wage for the occupation in the geographic area where the work will be performed.
Availability of H-1B visas: The foreign worker must be selected in the H-1B visa lottery if the number of H-1B visa applications exceeds the annual cap.
No bar to admission: The foreign worker must not be barred from entering the US due to any criminal, security, or health-related reasons.
The maximum duration of stay for an H-1B visa is 6 years. The initial visa can be issued for a maximum of 3 years, with the option to extend for an additional 3 years.
The H-1B visa cap is the maximum number of visas given out each year in the US. Currently, the annual H-1B visa cap is 85,000, with 65,000 visas reserved for foreign workers in specialty occupations and an additional 20,000 visas reserved for those who have earned a master's degree or higher.
The H-1B visa cap is in place to ensure the program does not lead to an oversupply of foreign workers that could potentially lower wages and harm US workers. The H-1B visa cap is established by the US Congress.
Each year, USCIS accepts H-1B petitions for the upcoming year. The registration period for the lottery is only open for 14 days every year, so you’ll need to be prepared ahead of time. If the number of petitions received exceeds the cap, USCIS conducts a lottery to randomly select a sufficient number of petitions for processing. The lottery is held separately for the 20,000 visas reserved for those with advanced degrees and the 65,000 visas for those with a bachelor's degree or equivalent.
If an H-1B petition is selected in the lottery and approved, the foreign worker can start working in the US on or after October 1 of that year. However, if the petition is not selected, the foreign worker may need to explore other visa options or postpone their plans to work in the US.
To register for the lottery, you’ll need to create an online account on the USCIS website. You or the attorney who has filed on your behalf will be able to see your status.
Any of the following statues could show up:
Denied (usually if you’ve applied for the H-1B visa with the same employer multiple times)
Invalidated (payment failed)
The only way to qualify for the H-1B visa is to be picked and approved during this lottery unless you are eligible for a speciality exemption depending on the type of work you’ll be doing.
There are several categories of foreign workers who may be exempt from the H-1B visa cap or from certain requirements of the H-1B visa program, including:
Higher education and research: Foreign workers who will be employed at institutions of higher education or related nonprofit entities, or at nonprofit research organizations or government research organizations, may be exempt from the H-1B visa cap.
Certain nonprofit organizations: Foreign workers who will be employed by a nonprofit organization that is affiliated with or related to an institution of higher education may also be exempt from the H-1B visa cap.
H-1B extensions: Foreign workers who have previously been counted against the H-1B visa cap and are seeking to extend their stay in the same H-1B status, change employers, or add concurrent employment may be exempt from the H-1B visa cap.
Each case is evaluated on an individual basis, and eligibility for any exemption should be confirmed with the US Citizenship and Immigration Services (USCIS).
Right now, it costs $10 to register for the H-1B visa lottery. If the applicant is selected, the employer will have to pay $460 to file Form I-129.
Costs after the initial fees will vary depending on how large the company is, how many times they’ve filed for H-1B visas, and if they want to expedite the application process.
In January 2023, the USCIS announced that they plan to raise the filing fees in May of 2023. The pre-registration lottery fee could increase to $210 and filing form I-129 could increase to $1,385. No set amounts have been confirmed yet; we will update this article when new information is available.
Before you move to the US under an H-1B visa, you’ll need to register with the US Citizenship and Immigration Services (USCIS), because there is a cap on the amount of visas they approve each year.
The H-1B visa process can be complex and involve multiple steps. Here is an overview of the general process:
Labor Condition Application (LCA): Before an employer can file an H-1B petition, the business or company must obtain an approved Labor Condition Application (LCA) from the US Department of Labor (DOL). The LCA requires the employer to attest that they will pay the H-1B worker the prevailing wage for the position and that employing the H-1B worker will not adversely affect the wages and working conditions of similarly employed US workers.
File H-1B petition: Once the LCA is approved, the employer can file an H-1B petition with the US Citizenship and Immigration Services (USCIS). The H-1B petition requires the employer to provide information about the position and the H-1B worker, including their qualifications and education.
USCIS review: USCIS will review the H-1B petition and determine whether the H-1B worker is eligible for the visa and whether the employer meets the requirements of the H-1B program. USCIS may request additional information or documentation if needed.
H-1B visa interview: If the H-1B worker is outside of the United States, they will need to attend an interview at a US embassy or consulate in their home country. The purpose of the interview is to determine whether the H-1B worker meets the requirements for the visa and whether they intend to return to their home country at the end of their authorized stay in the United States. During this interview be prepared to show your passport, payment of application fees, and approval of I-129 petition and I-797 approval.
H-1B visa approval: If USCIS approves the H-1B petition and the H-1B worker's visa interview is successful, the H-1B worker will receive their visa and can travel to the United States.
An EOR service like Via can also help your business circumvent the H-1B process. With Via, we can help you create a comprehensive benefit package and onboard full-time workers in their own country without the headache associated with obtaining a visa or relocating top talent. This is a great option for companies looking to hire talent while awaiting visa approval, or for applicants who might not be able to apply for a visa or relocate to the United States.
If you’re looking to relocate the worker down the line, an EOR service like Via can also help you navigate the application process.
Via makes hiring talent around the world and building hubs in new countries seamless. With our easy-to-use platform and payment tools, Via helps you manage local HR processes for direct employment such as work visas & permits, employee data privacy compliance, benefits, global payroll solutions, background checks, and other legal products. Our team of local labor lawyers and on-the-ground experts ensure that your company remains compliant while expanding abroad. As your employer-of-record/entity abroad, Via assumes responsibility for employment liability, so that you can focus on what matters: recruiting and managing your team.