U.S. Immigration: Navigating The Maze Of H-1B Visa Program In 2023

Key factors employers should consider when sponsoring a foreign national worker for H-1B status

With record low unemployment rates, many employers are finding it more difficult to hire and retain necessary talent. This is especially true in information technology (IT), medical, and other professional fields, such as accounting, engineering and mathematics. 

Due to a need to consider as many potential applicants as possible when filling critical roles and positions, many employers may be interested in hiring and sponsoring foreign national workers using the H-1B nonimmigrant visa (or H-1B visa program) category. 

This article will provide a brief overview of some of the important issues that employers should consider when sponsoring a foreign national worker for H-1B status. 

Before an employer decides to sponsor a foreign national worker for H-1B status, many employers may have an opportunity to first hire a foreign national worker when the foreign national graduates from a United States university or college and receives an initial year of work authorization under the F-1 student Optional Practical Training (OPT) program. 

Hiring a foreign national worker who has OPT work authorization is usually a fortuitous arrangement for the employer and the foreign national worker, as the employer is not obligated to pay any attorney or legal fees and is often able to hire a foreign national worker immediately. 

Additionally, if the foreign national worker earned a degree from a U.S. college or university in a science, technology, engineering and mathematics (STEM) field, then it may be possible for the foreign national to apply for an additional two years of work authorization. 

If the employer meets other requirements, such as enrolling in E-Verify and agreeing to a training program consisting of regular evaluations, this is called STEM OPT work authorization. Hiring a foreign national worker using OPT or STEM OPT work authorization allows an employer to first hire a foreign national worker for one to three years before needing to sponsor the worker for H-1B status. 

While OPT and STEM OPT can be an advantageous form of work authorization, especially when trying to fill urgent needs for a position, this form of work authorization cannot be extended once it has been exhausted. Thus, employers interested in hiring foreign national workers may want to consider using the H-1B nonimmigrant work visa program to provide a longer duration of work authorization. 

Specialty Occupations

Contrary to popular belief, the H-1B visa program is not limited to IT workers. While IT workers tend to be highly represented in the H-1B visa program, the H-1B visa program allows employers to sponsor foreign national workers in “specialty occupations.” A “specialty occupation” is defined as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the U.S.,” under 8 C.F.R. 214.2(h)(4)(ii). 

Assuming the employer can demonstrate that both the position and foreign national worker meet the requirements under 8 C.F.R. 214.2(h)(4)(iii) and meet certain wage requirements according to the Department of Labor (DOL), then it should be possible for the employer to sponsor a foreign national worker for H-1B work status.  

When considering the H-1B visa program, employers should understand the following basics:
 

• Employers can request an initial period of work authorization up to three years, and can request extensions for a maximum of six years (however, extensions beyond the six-year maximum are permissible under certain circumstances).
• H-1B work status allows for both full-time and part-time work.
• Fees associated with the H-1B process, especially attorney and filing fees, must be paid by the employer (with some very limited exceptions).
• Employers should consult with immigration counsel to ensure compliance with the H-1B visa program. 

H-1B Lottery and Cap – Subject Employers

The real difficulty with the H-1B visa program is the limited number of new H-1B visas issued each year and the numerous steps it takes to sponsor a foreign national worker for their initial H-1B work status. At the beginning of each U.S. fiscal year, (Oct. 1) there are approximately 65,000 new H-1B visas for Cap-Subject employers, with an additional 20,000 set aside for new H-1B visas for Cap-Subject employers for foreign nationals who have graduated from a U.S. college or university with a master’s degree or higher. Most private employers will be considered a Cap-Subject employer. If an employer is Cap-Exempt, then that employer is not subject to the limited number of H-1B visas and can apply for an H-1B visa at any time. However, Cap-Exempt employers are typically limited to colleges and universities, government research organizations or nonprofit organizations with an affiliation agreement with a college or university. 

Because of the limited number of H-1B visas available for Cap-Subject employers, most employers must carefully plan and execute a series of specific procedures to maximize the prospect of successful H-1B sponsorship. Beginning in January and February, employers should assess which foreign national workers they need to include in the H-1B lottery registration. Due to the limited number of H-1B visas available, the purpose of the H-1B lottery registration is to permit the government to issue H-1B visas to all prospective employers interested in sponsoring a foreign national worker for an initial H-1B visa in a fair manner. Employers should prioritize foreign workers with expiring OPT or STEM OPT work authorization, especially those who are ineligible for a STEM extension to ensure that these foreign national workers are included in the H-1B registration lottery. Employers should also carefully assess the specific dates when OPT and STEM OPT work authorization will terminate, as this will be important later in the process. 

Beginning in late February, employers should review the H-1B registration requirements on the U.S. Citizenship and Immigration Services (USCIS) website. The H-1B registration allows employers to enter their prospective foreign national workers for the H-1B lottery and pay the necessary fee, which is currently $10 per foreign national worker. 

Typically, the H-1B lottery registration period occurs during the first two weeks of March. For 2023, the H-1B registration period was from March 1 through March 17. Because of the limited number of H-1B visas permitted each year, it is recommended that employers register a foreign national worker for as many lotteries as possible while the foreign national worker is working with either OPT or STEM OPT work status. Entering an employee in the H-1B lottery for multiple years increases the chances that the foreign national worker will be selected.

The Filing Process

After the H-1B lottery registration period closes in March, USCIS conducts its initial round of selections. If a registration is selected, the employer will need to carefully review the H-1B registration as it will provide important instructions with respect to the location for filing the H-1B petition. 

Beginning April 1, employers will need to assemble the H-1B petition and submit the petition with the required filing fees to USCIS. All H-1B petitions must be received by USCIS no later than June 30. Additionally, the H-1B petition must be received prior to the expiration of a foreign national worker’s OPT or STEM OPT work authorization in order to receive the Cap-Gap work authorization extension. The Cap-Gap work authorization extension provides an automatic extension of work authorization between the expiration of OPT or STEM OPT work authorization and the start of the H-1B work authorization, which is always on or after Oct. 1. 

After the initial H-1B lottery registration and filing period closes, USCIS may conduct a second lottery if an insufficient number of H-1B petitions are received by June 30. This second lottery will contain a smaller number of selections from the initial H-1B lottery registrations. Thus, while a foreign national worker may not be included in the first round of selections, there is always a chance that the foreign national worker could be selected in a later round of selections. 

Because of various requirements when putting an H-1B petition together, employers should allow for a minimum of three weeks to complete and submit each H-1B petition to USCIS. 

It is important to note that if an employer hires a foreign national worker who already has H-1B work status, then that employer would only need to file an H-1B portability petition. Usually, it takes a few weeks to prepare an H-1B portability petition, and once the H-1B portability petition is filed, the foreign worker should be able to immediately begin working for the new employer, even while the portability petition is pending. In other words, once a foreign national worker has been selected in the H-1B lottery, it is typically no longer necessary to go through the H-1B lottery registration period when the foreign national worker changes employers. Additionally, extensions of existing H-1B status are also exempt from the H-1B lottery.  

Successful H-1B Submission Strategy

There are many additional legal and regulatory requirements that need to be considered by employers when hiring foreign national workers using the H-1B visa program, which are too numerous for the purposes of this article. The best strategy for a successful H-1B submission is to work with immigration counsel to navigate the many steps and deadlines involved, and to ensure compliance with the H-1B visa program.  

Finally, because the H-1B visa program only allows for a maximum of six years of work authorization (with some limited exceptions), employers should begin discussing more long-term solutions, such as employment sponsorship for permanent residency (green card) with immigration counsel as early as possible. In immigration, the more planning and time an employer has, usually the better the results. 

George Ernst is a Partner at Hall Booth Smith’s Little Rock office, where he concentrates on immigration, international business, and labor and employment matters.