• The H-1B Work Visa May Be a New Solution to The Great Resignation

By Attorney Katherina B. Alznauer

An H-1B nonimmigrant work visa allows hiring foreign workers in specialty occupations that require theoretical or technical expertise – the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. A classic example is an accountant, a teacher, or an engineer that must have a degree to be able to perform the job duties.

The H-1B visa opens a lot of opportunities for both U.S. employers and foreign workers, especially in light of “the great resignation” that swept the United States as a result of the pandemic. There are 65,000 regular cap spaces available, and 20,000 U.S. advanced degree exemption spots, known as the master’s cap. There may be some additional exemptions to the cap. March 1, 2022 marks the first day when USCIS starts accepting H-1B registrations for the fiscal year 2023.

For the new H-1Bs, the employment period may commence no sooner than October 1, 2022, generally for a period of up to three years. It can be extended to six years and sometimes more. Unlike many other visas, H-1B permits a foreign worker to have an intent to immigrate to the United States and live here on a permanent basis. In practice, it means that there is a chance that by October 2022, a U.S. employer may be able to fill its vacancies with a professional foreign worker motivated to stay with a company for several years.

This will be the third year that the cap selection is decided by a computerized draw of lots. So far, this system has been beneficial. The computerized draw permits additional selections if the annual quota is not used up. For example, for the fiscal year 2020, there was an additional random selection round in August 2020. In 2021, there were two additional rounds in late July and just recently in November 2021.

A computerized draw has also made the application process easier. In the past, to enter into the H-1B cap draw, an employer had to package the full case and wait for months to find out if the petition was selected. Now, all it takes is a preliminary analysis regarding the position and an online registration. Approximately by April 1, 2022, all the initial selections will be notified.

We encourage U.S. employers and foreign nationals to contact their attorneys and register for the lottery. We recommend the holders of other visas and those who have a different immigration status such as E-3, H-4, J-1, L-2, TN, F-1 or have Employment Authorization Documents through their educational program (OPT or CPT) to consider changing to an H-1B. Foreign nationals who are outside the United States who want to work in the U.S. may also qualify. Individuals who will miss FY 2023 window will have to wait another year to apply for a new H-1B.

Another positive change this year is that because of the pandemic, the Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers through the end of 2022 to waive the in-person interview requirement for certain H-1B visa applicants who are applying for a visa in their country of nationality or residence. This includes those H-1B applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility. This also includes the first-time H-1B applicants, who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

In light of the all these changes, H-1B is actually becoming a really great program permitting the U.S. companies filling their vacancies in a foreseeable future worthy of trying.

We recommend seeking the advice of a highly capable immigration attorney to prepare for a timely H-1B registration.

Call us at (866) 201-6355 or e-mail inquiry@johnperryandassociates.com.perryalznauer.com to schedule your consultation asap.