The H-1B Visa: Employers’ Answer During the Great Resignation

Everyone knows someone who has moved jobs in the current Great Resignation. Employers can’t seem to prevent turnover and hiring managers are scrambling to fill positions. For January 2022, the Department of Labor reported that there were 11.3 million job openings and 6.1 million job separations.1 Many companies are turning to virtual assistants, both inside the U.S. and abroad, for additional support. But what about those companies who require “boots on the ground” in the U.S. to fill open positions? Employment-based visa sponsorship may be the answer.

The H-1B “specialty occupation” visa is often used to employ foreign national professionals. Specialty occupations include engineers, IT personnel, financial analysts, actuaries, and other fields in which a bachelor’s degree or its equivalent is required. Job positions that do not require a bachelor’s degree, such as truck drivers, machinists, and technicians, do not qualify for an H-1B visa because these positions are not considered “specialty occupations.”2 The H-1B visa category, which is governed by federal law, is subject to an annual quota and takes place annually in March. Once this lottery has occurred, new H-1B visas are not available during a large portion of each year.

An employer may sponsor a foreign national in the lottery who is currently abroad or a foreign national who is currently present in the U.S. in another visa category. Many employers hire recent university graduates who are present on student visas and hold Employment Authorization Documents (EADs). The employer may sponsor the foreign national in the H-1B lottery while the foreign national continues work using a valid EAD or using a provision called Cap Gap. 3

However, an individual who is transferring their H-1B visa from their current employer to another company is exempt from the annual quota and can transfer at any time during the year. They may begin working at a company as soon as the transfer petition has been filed and the receipt notice has been received.4 Many foreign nationals, however, want the insurance of the H-1B transfer petition to be approved before beginning work for the new employer.

The H-1B is valid for a total stay of 6 years in the United States. However, changing employers does not restart the 6-year clock.5 Therefore, it is important for a company to understand how much remaining time a potential transferee has in H-1B status. Otherwise, the company may find itself losing that employee soon, or being pressed to begin the green card process right away, or both. An extension beyond the 6-year limit is available where the transferee progresses far enough in the green card process to qualify for the extension. This milestone requires holding an approved I-140 petition. In the current job market, green card sponsorship of H-1B workers is a standard expectation by foreign nationals once 6sixmonths to one year of performance reviews have been performed.

The employer is responsible for covering nearly all the fees associated with an H-1B petition. In addition to legal fees, the government filing fees involved in filing an initial or transfer H-1B petition are approximately $2,460.6 There is also an optional government filing fee of $2,500 to expedite the adjudication of the H-1B petition, which can be paid by either the individual or the employer. Understandably, employers who incur substantial expenses in obtaining H-1B approval for an employee often wish to recover these expenses if the employee leaves early. However, federal regulations provide that employers cannot recoup these expenses if they constitute a penalty under applicable state law. As in many human resources and legal matters, early assessment is critical when the eligibility, timing, and long-term planning for a foreign national transferee is involved.

VICTORIA GENTRY is the Managing Attorney of The Immigration Group, P.C. She counsels clients of all sizes, from startups to Fortune 100 companies, in on business-related immigration matters in the IT, Engineering, Finance, Pharmacy, and Insurance industries.

Endnotes

1 See 8 C.F.R. § 214.2(f)(5)(vi).

2 “Job Openings and Labor Turnover – November 2022” News Release from the Bureau of Labor Statistics, U.S. Department of Labor, March 9, 2022.

3 A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 20 CFR § 655.715.

4 8 CFR 214.2(h)(2)(i)(H).

5 8 CFR 214.2(h)(15)(ii)(B)(1).

6 These fees many fluctuate based on the size of the employer and other factors.