The Modernization of the H-1B: A Breakdown for Businesses on the Updated Visa Process

Authored by Yusra Bokhari
Published by the Phoenix Business Journal

The Modernization of the H-1B: A Breakdown for Businesses on the Updated Visa Process

The H-1B is the most sought-after employment visa in the United States, desired by both American employers/Agents and provisional foreign workers. The H-1B visa enables American employers to recruit top talent by hiring foreigner professionals in specialty occupations, typically characterized by a bachelor’s degree and/or work experience. The H-1B visa is most frequently utilized in the fields of technology, software, finance, and engineering.

At its core, the H-1B program is fundamentally a guest worker program giving qualified foreign workers access to a dual intent work visa. While the H-1B is technically a nonimmigrant work visa, it is a dual intent visa that has proven to be an excellent vehicle frequently utilized towards obtaining legal permanent residence for skilled foreigners.

Additional distinctive features of the H-1B program is that it allows an H-1B visa holder’s immediate family (spouse and children under 21 years of age) to accompany the visa holder in the United States; the H-1B is renewable; and it permits job portability.

The H-1B is a tremendous resource for American companies and employers as it enables them to recruit and retain top talent in innovative fields. The following is a brief summary of how you and your business can navigate the H-1B process.

Basic requirements

The basic requirements to qualify for an H-1B visa are 1) having a valid job offer, for a position that requires specialized knowledge, from an American employer; 2) a bachelor’s degree and/or a combination of education and experience equivalent to a bachelor’s degree in the field; and 3) an affirmative showing by the US employer that there is a lack of qualified American applicants for the position.

Numerical challenges – it really is a lottery

The biggest challenge to the H-1B is the numerical cap of visas available each year. The Immigration Act of 1990 caps the number of H-1B visas available annually to 65,000. Not surprisingly, the demand greatly outweighs the supply of the H-1B visa. Despite prevailing exceptions and changes that allot an additional 20,000 visas added for foreign nationals holding graduate degrees (master’s or higher) from American universities, the H-1B remains challenging to obtain. 

In order to deal with the abysmal supply/demand ratio, the United States Citizenship and Immigration Services (USCIS) administers the H-1B lottery where, as some argue, the chances of selection are about as likely as winning the local lotto. 

To participate in the H-1B lottery, the American employer registers the foreign employee during the annual registration period as announced by USCIS. The registration period for the fiscal year 2025 will open at noon Eastern on March 6, 2024, and run through noon Eastern on March 22, 2024.   

The electronic selection process provides some relief to applicants

Despite the challenges of an H-1B visa, USCIS has recently announced and implemented changes that are proving to make the H-1B process much more efficient. Most notably, USCIS implemented an electronic registration process for the H-1B cap in 2020.

Prior to the 2020 changes, the American employer/Agent was required to complete and submit an entire H-1B application for a provisional foreign worker without any guarantee of success. This process was arduous as it was both time-consuming and costly, with no guarantee of success. Since 2020, however, USCIS’s electronic registration system has streamlined the H-1B process, making it much more efficient and cost effective.

Significant accommodations have been made for American employers/Agents by simplifying the process. First, the American employer/Agent who has identified a prospective employee or foreign worker simply registers the worker on USCIS’s electronic portal – for a modest $10 fee.  USCIS selects from this pool, essentially inviting those selected from the pool to prepare and submit a completed application and pay the required filing fees. Second, USCIS has also made the application process simpler for American employers/Agents by offering online portals to complete and submit the required forms.

These changes have made the H-1B lottery much more accessible to American employers and employees. At this time, American employers are more willing to register a provisional employee for the H-1B lottery and the proverbial heavy lifting is not done unless the employee is actually selected.  

Realistically, the electronic registration system has the potential to make selection even more difficult, however, significant financial deterrents to participation have been mostly obviated. The actual impact of the electronic registration system has not been fully realized due to the COVID pandemic and subsequent restrictive measures. The 2023 lottery for the 2024 fiscal year was the first at capacity round since the implementation of USCIS’s electronic registration system.

Future changes?

As H-1B applications are revitalized in the post pandemic world, changes are anticipated. Although, not yet enacted, a proposal to increase the registration fee from $10 to $215 has been contemplated.

Despite the uncertainty, entering the H-1B lottery is an extremely valuable tool for American employers and businesses looking to innovate and bolster their workforce. Next, the positive aspect of the H-1B is that the selection process is relatively quick; if a foreign worker is not selected in the lottery, the employer is only out nominal expenses and has the resources to explore other work visas and immigration options.

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