H1b Visa Filing Pitfalls - Frear Law
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PLEASE NOTE: Important changes have been made to the H1b process. For the latest information, check out this guide.

As I write this, it is mid December, in the heart of the holiday season. After the holiday fog lifts, it will be time for many HR managers to begin planning for a different but equally exciting season, the H1B Cap Subject Filing Season! This post will explore some potential challenges for obtaining approval of the coveted H1b visa for fiscal year 2020.

The Basics

General H1b Requirements

The H1b is a non immigrant visa that enables foreign national employees to work in the US after the employer obtains an approved labor condition application(LCA) from the department of labor(DOL). To qualify for an H1b visa, there must be a professional assignment in the US; the employee must be qualified for the professional assignment; a valid employment relationship must exist; and there can not be labor dispute in progress at the worksite.

The Lottery

Even if you meet the requirements of the H1b Visa, you will have to cross your fingers and hope that you are selected in the lottery. There is currently an annual limit of 65,000 H1b Visas, with an additional 20,000 H1b Visas that are reserved for foreign nationals who hold advanced US degrees. For fiscal year 2019(which began on October 1, 2018), there were approximately 190,000 applicants competing for the slots.

H1b Visa Challenges

H1b Visas in the Trump Era

Under the Trump administration, there has been a shift in policy and in philosophy as it relates to H1b Visas. Trump has famously made it a priority to “buy american and hire american.”

For the H1b program, this means that applications will experience heightened scrutiny for the foreseeable future. As discussed below, applications for H1b employees who earn a level one wage are the most likely applications to be challenged. Employer control issues should also be carefully considered prior to filing.

Level One Wage Scrutiny

During the H1b process, you must show that you plan to pay the “prevailing wage.” The prevailing wage is the higher of the actual wage that you pay to similar workers or the average amount that people in similar positions outside of your organization are paid. When you file an H1b you will have to select a wage level for your employee. The four wage levels are as follows:

Level 1: entry level workers who perform routine tasks and work under close supervision

Level 2: qualified workers who perform moderately complex tasks and exercise limited independent judgement

Level 3: experienced workers who exercise judgement and have coordination and supervisory authority

Level 4: fully competent workers who perform independent evaluation, selection, modification, application of standard procedures and techniques, and generally have management or supervisory responsibilities

Under the Trump administration, there has been a lot of rhetoric about how H1b visas should be reserved for the very best professionals around the world. They should not be used by employers who are looking for a bargain. The Trump administration appears to be concerned that employers are abusing the system and paying foreign nationals less than they would pay similarly experienced american workers.

 

Workers who earn level one wages are the least skilled workers of all H1b workers.  There is a suspicion that these workers are actually performing higher level work, while being paid for lower level work. Due to this concern, all employers of level one h1b candidates can expect close scrutiny during the 2020 filing season.

“Specialty Occupation” Challenges for Level One Employees

H1bs are supposed to be reserved for those who are “coming temporarily to the United States [t]o perform services in a specialty occupation.” Such occupations require theoretical and practical application of a body of specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States.

In addition to the specialty occupation requirement for the H1b position, the candidate must be qualified to perform services in the specialty occupation due to the attainment of a baccalaureate or higher degree or its equivalent in the specialty occupation.

Challenges based on a lack of specialty occupation oftentimes occur when a level one wage is utilized. The argument from USCIS is for that people who earn a level one wage are not working in a position that is sufficiently advanced to qualify as a specialty occupation for H1b purposes.

Employer Control Challenges to H1b Visa Applications

Employer control is another issue to consider before filing. This issue often arises when the employee is placed at a third party worksite. For example, IT consulting firms oftentimes place a consultants onsite at third party companies. In these scenarios, the application will be denied if the petitioning employer can not demonstrate the right to control the employee at the third party worksite.

 

Conclusion

These are just a few of the many issues that could affect H1b filings in the upcoming cap season. If you are planning to file an H1b petition for a talented foreign national, is important to consult with an immigration lawyer who can provide strategies for overcoming these issues.