H1B Visas & Workers in Flux

 Posted on April 04, 2018 in Immigration

Much ink has been spilled in recent months regarding the H1B visa, which is an employment-based non-immigrant visa that allows specialized professionals to work in the U.S. if sponsored by the relevant company. The current administration has made it clear that a reduced flow of such visas is a priority and, as such, there is a significant amount of misinformation surrounding the H1B visa as of this writing. If you are in a situation where you may apply for or receive one, it is important to understand the truth.

H1Bs Are Limited

Unlike many other visas, the H1B category is perpetually limited and oversubscribed, with demand far exceeding the cumulative 85,000 visas available each fiscal year. It is specifically limited to “specialty occupations,” the criteria for which is specified in the visa manual. A very small number of H1Bs are exempt from the cap, but not enough to make any substantive difference in the years-long queue.

In order to submit your petition, your potential employer must file it after adding their input, such as the nature of the job offer and work that will be expected to be performed. There is unfortunately no foolproof method for filing an H1B and having it accepted quickly; however, “premium” processing used to exist, wherein a petition was placed on a fast docket after paying an extra fee. Still, the current administration ceased this process as of early 2017, with no firm determination on its reinstatement.

H4s May Face Sooner Action

While as of this writing, the H1B visa is still available (despite long queues and a lack of premium processing), but dependents of H1Bs may face more immediate issues. Most spouses and children of H1B holders are granted H4 visas, and the previous administration passed guidance permitting spouses of H1B holders to obtain employment authorization, as a method to disincentivize green card applications (the current backlog is immense, especially for those from India and China, who could wait as long as 70 years)—if both spouses are permitted to work, there is less reason to apply for lawful permanent resident status.

Moreover, as of this writing, the administration is entertaining the idea of removing the rule, citing the alleged unfairness to U.S. workers, despite the numbers of spouses working only making up approximately 3 percent of the total of legal foreign workers present in the country. If the rule is eliminated, there is no specific data on whether work authorizations would be invalidated or if those holding them would be allowed to continue. However, it is important to be aware that this may happen and react accordingly.

Seek Experienced Legal Assistance

If you or your loved ones are dealing with this uncertainty, it can feel like a nightmare. However, consulting an experienced attorney can help ease your mind, or at least help you to have a plan in place if the law does change. The passionate Chicagoland immigration attorneys at Mevorah & Giglio Law Offices are happy to sit down with you and try to help you determine the best path for your family. Call our office today to set up a free consultation.