The Random Nature Of H1B Visas

 Posted on February 06, 2019 in Immigration

It may seem somewhat counterintuitive, but H1B visas, which are nonimmigrant visas granted to highly skilled workers, are essentially given via lottery every fiscal year and have been for roughly the last decade and more. Citing the slapdash nature of the process, the current administration has sought to streamline and refine it - however, the changes being proposed are far from uniformly approved. New proposed modifications also continue to come in, sometimes from presidential tweets and other unlikely or untrustworthy sources, which makes the process arguably even more chaotic.

The Process Is a Gamble

H1B visa holders are foreign workers that are allowed to be employed by U.S. companies temporarily, for so-called “specialty occupations.” Specialty occupations are defined as those requiring “theoretical and practical application” of a body of “highly specialized knowledge” in a host of different fields, including biology, chemistry, law, economics, theology, and many others. They must hold at least a bachelor’s degree or its equivalent, and the period of employment is three years, extendable to six before one must reapply for a new visa.

An H1B visa is somewhat unique in that it is perhaps the only visa where an employer puts forth the effort to apply, and yet is not guaranteed a satisfactory result. There is a cap on the category, allowing 65,000 H1B applications to be granted, and 20,000 H1Bs to be granted under the so-called ‘masters’ cap’ for those with advanced degrees from U.S. schools. If your application is not chosen, the fee is refunded, but that is that - you are not permitted to work in the job that would require the visa. This can be catastrophic for many, especially if they had planned around receiving the job.

Changes Can Stagnate Hiring

Changes to the process are coming, though they would appear to benefit no one but the administration. On December 3, 2018, a notice of proposed rulemaking was entered into the Federal Register, ostensibly to come down on January 2, 2019, but since the government is shut down, it has remained up and accepting comments as of this writing. In that notice, the administration suggests altering the nature of the lottery so as to allow more applicants with U.S.-earned master’s degrees. Allegedly, this is intended to make the system more “merit-based,” though that criteria is subjective in the extreme. Until such a change is implemented, its effects cannot be accurately assessed, but it does not take a leap of logic to assume that more visas for those with U.S. earned master’s degrees means less for everyone else.

Another potential change may never actually come to pass, but the mere whisper of it may be enough to cause problems. The president tweeted, out of the blue, that “changes are soon coming … including a potential path to citizenship.” While the notion of making or changing law by tweet remains merely a phantasm of an irrational mind, the idea of actually offering a potential path to citizenship to H1Bs, should it ever come to pass, could turn the entire program on its head, especially if the volume of applications remains so high. It would essentially have to be rebuilt from the ground up.

Seek Out a Chicagoland immigration Lawyer Today

While the H1B visa lottery for 2019 has come and gone, it is never too early to start learning and preparing for the next one. If you have questions around your H1B visa, we can help. The Chicagoland immigration attorneys at Mevorah & Giglio Law Offices are well versed in these types of cases, and we are happy to try and help you with yours. Call our office today at 630-932-9100 for a free consultation.