What Is the H-1B Visa Program?
If you only think of a visa as a type of credit card in your wallet, you may have been surprised to learn the term has a whole other meaning that is tied to the volatile topic of immigration. The visa program in the U.S. allows foreign citizens to enter the country and stay for varying amounts of time for different reasons. The H-1B visa recently made big headlines as one of the types of visas temporarily suspended by an executive order signed by President Trump on June 22, 2020, due to the ongoing coronavirus pandemic.
This particular type of visa grants nonimmigrant aliens the right to work in the U.S. based on specific conditions and criteria. In general, foreign workers must have specialized skills in a specialty occupation or be a fashion model to qualify. With H-1B visas in the news, critics who believe they harm the American workforce as well as experts who insist they are essential have all started voicing their opinions. If you’re not sure which side to support, it may help to understand more about how these visas work.
Qualifications for an H-1B Visa
The primary requirement for approval of an H-1B visa is the foreign worker must have special skills and training in a specialty occupation. Their training and knowledge would include a bachelor’s degree (or the foreign equivalent) at minimum. Occupations in the science, technology, engineering and math (STEM) fields are the most common jobs that meet this H-1B visa requirement. Employers use these visas when they are unable to find skilled employees in a particular field in the U.S. The visa allows them to expand their search to other countries to hire temporary employees.
Registration Process for H-1B Visas
A new application process went into effect in 2020 for H-1B visas issued for 2021. For the past several years, demand for new visas has far exceeded the number of annual visas available. Instead of continuing to require employers to fill out possibly unnecessary applications from the start, USCIS established a new registration process for visa numbers. Registration allows employers to submit minimal information to notify USCIS of their intent to file Labor Condition Applications (LCA) for potential H-1B employees. This process ensures employers don’t waste time filling out full applications and submitting supporting documentation without knowing if visa numbers will be available.
Finalizing the H-1B Visa Process
After employers complete all the necessary steps and receive approval of their H-1B visa applications, they can then notify approved workers outside the U.S. to apply in their home countries. To do so, they go to the U.S. embassy or consulate to complete the required documentation for the U.S. Department of State. Next, they apply to U.S. Customs and Border Protection (CBP) for admission to the U.S. Once they arrive in the U.S., the employer will complete all their final hiring procedures, including filling out an I-9.
Protections for American Workers
Specific legal restrictions protect equally trained American workers from losing opportunities due to H-1B visas. Any workers already employed by an H-1B dependent employer — meaning 15% of their workforce has H-1B visas — or an employer who has deliberately violated the rules in the past can’t be laid off in the 90-day period before or after the employer’s application to hire a foreign H-1B worker in an essentially equivalent job. That means a biotech company can’t suddenly start laying off their U.S.-employed biochemists within three months of requesting permission to hire a foreign biochemist.
Protections for Foreign H-1B Visa Holders
Legal requirements must also be met to protect the rights of those who are granted H-1B work visas. Before employees begin working, employers must negotiate competitive wages that align with either the amount each employer is already paying similar employees or the amount that is the industry standard for the area. Employees should also receive copies of their LCAs for their records. If necessary, licenses or permits must be obtained before employees can start working, employers must still pay them while they wait.
Concerns Regarding H-1B Visas
Many people immediately wonder if the H-1B visa process is costing Americans good jobs. Although some companies have broken the rules at times, it would be uncommon for companies to seek out foreign employees for jobs that could be easily filled by Americans. H-1B visas are in high demand with quantities too limited to put time, money and effort into hiring foreign workers for jobs that plenty of Americans could easily do. In most cases, the jobs related to H-1B visas are so highly specialized that very few people are trained to do them, or the employer can’t find trained American workers already living in or willing to relocate to a particular city.
Future of H-1B Visas in the U.S.
In the technology segment of STEM, those in "computer-related occupations" made up 65% of H-1B visas in 2019, with companies like Google, Amazon and Apple submitting thousands of applications. Of the more than 388,000 H-1B visa holders in 2019, approximately 72% were from India and about 13% were from China. These numbers indicate that suspending the approval of H-1B visas is certain to have an ongoing impact on key American technology companies as well as on professional opportunities for skilled workers in these two Asian countries.