And we're off. The race has begun for H-1B visas--the kind allowing employers to keep their high-skilled foreign employees in the U.S. 

The United States Citizenship and Immigration Services office begins receiving applications April 1. Which means you've got approximately eight weeks to get your (or your employees') paperwork in order. It's an anxious time, particularly for workers whose current visa or temporary employment status expires anytime soon.

In recent years, demand has been so high that the USCIS has used computer-generated lotteries to randomly determine which petitions it ought to consider for the 85,000 slots available. For the past three years, there's been a superabundance of applications: Roughly 233,000 in 2015, up from 124,000 in 2013. The spike comes as companies large and small (including Silicon Valley startups) have continually turned to non-U.S.-born workers for coveted "STEM"-type skills like engineering

If they don't get lucky in one of the lotteries, employers and employees often find themselves scrambling for options. Even in the weeks and months leading up to the lotteries, "they are just really nervous about what to do," says Shiva Karimi, an attorney in the immigration practice group at McLane Middleton. "That whole issue of timing and alternatives is a big part of the discussion."

Of course, even if you win one of the lotteries, your worries are not necessarily over. All it means is that the USCIS will consider your petition--not that you've necessarily been approved. (But if you've used a reliable attorney for the process, you probably don't have much to worry about.) What's more, the H-1B visas granted after the April 1 deadline don't take effect until October of that same year. Which is why employees may still have an uncomfortable in-between feeling, if their previous visa or temporary employment status expires prior to October. 

With Karimi's help, I've put together this "explainer" about H-1B visas. Two big disclaimers: First, as Karimi points out in her YouTube video about H-1B visas, "there are as many visas as there are letters of the alphabet." So if a valuable employee you know doesn't qualify for an H-1B--or loses out in the lotteries--you'll likely have other options. Second, you'll need a skilled, experienced attorney to sort through the various requirements of all these visas--and to determine if the H-1B or another is a match for the employees you have in mind.  

Thusly disclaimed, here's a distillation of the basics, in question and answer form:

Who typically applies for an H-1B visa?

Strictly speaking, the applicant is an employer, on behalf of an eligible employee or employees. Employees are typically recent college graduates who have worked in the U.S. temporarily, under a temporary employment status called "optional practical training." OPT status is usually granted at the end of the student's degree program. Most OPTs work for high-tech companies. 

That sounds straightforward. Where does the complexity come in? 

One of the most time-consuming parts of the process comes before the application itself: It's the key first step of establishing degree equivalencies when the degree comes from a school outside the U.S.

The H-1B application requires that you are a college graduate--that is, someone who has the equivalent of a four-year bachelor's degree in the U.S. But how is that equivalency determined? That's where the complexity comes in.

The short version is this: There are third-party vendors who specialize in credentialing (or denying) degree equivalencies. Your attorney knows who they are. Your employees will need to make sure their education has been credentialed as equivalent to a U.S. bachelor's before applying for an H-1B. 

If the employee's non-U.S. education is not the equivalent of a bachelor's, all hope is not lost. It's possible, says Karimi, that you can substitute relevant work experience for formal education. But to credential this sort of substitution, you'll still need the services of a third party or multiple third parties and/or testimonials from college professors. 

How long does all of that credentialing take?

At this time of year--less than two months away from the April 1 deadline--you might be out of luck. "I'd say it would be tough but not impossible," notes Karimi. The reason is that these credentialing services "tend to be saturated at this point in time." Often, they are too backlogged to provide fast-enough turnarounds when it's this close to April 1. 

Plus, on top of the credentialing, the process necessarily requires lots of translations. Those, too, take time. 

Which is why Karimi advises you get the ball rolling on your application several months in advance of April 1. If you want to apply for an H-1B in 2017, you and your employer should speak to an attorney in 2016.  

What other pre-application steps are required? 

The other major pre-application step is something called the Labor Condition Application. In simple terms, this is a certification from the Department of Labor, filed by employers on the behalf of any visa-seeking employees. The process typically takes seven days. Completing it is a prerequisite for applying for an H-1B. 

So if all of your paperwork and credentialing are together by early March--but you don't yet have your LCA in place--you should still be fine to meet the April 1 deadline. 

What happens in late March and early April?

Ideally, your lawyer will FedEx your application on March 31, priority overnight, so it arrives at USCIS on April 1, the first day on which USCIS accepts applications. USCIS will accept applications for the first five business days after April 1. After which time, it will take four discrete steps: 

1. Log and and file the applications. 

2. Reject all defective applications--that is, applications that do not strictly follow instructions or meet requirements. This is yet another reason you need an attorney's help.

3. Conduct the lotteries. The 85,000 slots for H-1B visas are broken down thusly: 20,000 for applicants with master's degrees from U.S. institutions, and then 65,000 for everybody else. The lottery for the 20,000 master's slots happens first. Then comes the big lottery, for the remaining 65,000 slots. Master's applicants who lost the master's lottery are automatically entered into the general-category lottery.

4. Notify winners and losers. Employers with employees who've won either lottery are usually notified within one month of filing their application--before May 1, in other words.  

All this talk of lawyers sounds pricey. How much will this cost?

Karimi says a typical case will require between seven and nine billable hours of an attorney's time. How much is a billable hour? It depends on the attorney. But it's safe to say that for this sort of work it's at least $300 and usually not more than $500. 

Some firms charge flat rates. Karimi says $2,500 is a common flat fee. Huge law firms, says Karimi, can charge as little as $1,000 per employee as a flat fee. But these flat fees are predicated on large employers--who are footing the bill--seeking those legal services on behalf of a high volume of employees. By contrast, a small business owner, who might be applying on behalf of just a few employees, would be more likely to be paying an hourly rate. 

All of these fees do not include the steep costs of the application itself, which must be paid by the employer. There's a $320 application filing fee, a $500 fraud prevention fee, and a $750 or $1500 enforcement fee. It's $750 if the employer has 25 or fewer employees. If the employer has 26 or more employees, it's $1,500. 

All told, you're looking at an application cost of at least $1,570 per employee. Throw in seven hours of attorney's fees at $350 an hour, and you are looking--at a bare minimum--at costs of roughly $4,000 per employee, for small business owners.  

What happens if an applicant doesn't win either lottery--or does not qualify for an H-1B in the first place? 

You'll likely still have some options. With your attorney's help, you can determine whether your organization is a "cap-exempt" employer--meaning your employees' H-1B visa status would be awarded (or rejected) separately from those competing for the 85,000 slots. 

For example, institutions of higher education and many types of nonprofits are cap exempt. If the employee you're applying on behalf of is already employed by a cap-exempt organization, then the employee's petition could be exempt. 

What's more, private employers may petition USCIS to be cap-exempt--for the sake of an employee's application--if the employee in question will be physically working at a cap-exempt organization like a nonprofit or university and there is a "nexus" between the work performed for the employer and the purpose of the nonprofit. It's yet another reason it behooves any growing company to explore partnerships with local universities and nonprofits

All this is a lot to stress out about. Are there alternatives, or reasons to be optimistic?

Yes. First of all, some employees have a greater chance than others. Applicants who have already earned a U.S. master's degree are an obvious example, since they'll get two chances via the lottery to earn slots--first in the group of 20,000, then (if they lose) in the general group of 65,000.  

Also, if an employee has received an H-1B in the past six years--and is only going through the process again because she has a new employer--that application does not count toward the cap. 

In addition, you need to see if your employees are eligible for other sorts of work visas. Workers who are citizens of Singapore, Chile, and Australia qualify for separate visas altogether--visas which are not part of the H-1B cap.  

And if your company is multinational, your employees might be eligible for an L-1 Intracompany Transferee Visa. The employee must be managerial or have specialized knowledge, and she has to have already worked in a foreign branch of the company. 

An employee might also be eligible for an E Visa, if the company is making a foreign investment in the country of the employee's nationality. Finally, there are J-1 and H-3 visas, which pertain to employee training. If your employees are eligible for any of these, there will be no need for them to endure the stresses of the overall H-1B process. 

For more info, you can watch Karimi's video primer on the H-1B visa application:

 

 

Published on: Feb 4, 2016