The Impact of the H-1B Cap Rule on Employment-Based Immigration

H-1B visas are temporary work visas that help American employers bring qualified, hard-working foreign nationals with specialized skills to the U.S. for job opportunities. New Orleans companies have long taken advantage of the federal program to bring skilled workers to the state to fill specific roles. However, government regulations cap the number of eligible H-1B visas, meaning only a limited number are available annually. This cap has a considerable impact on New Orleans employers and foreign workers looking to contribute to the U.S. economy. Here’s what you need to know.

The H-1B Program and Eligibility Requirements

The H-1B program applies to employers looking to retain the expertise of non-immigrant, foreign workers with specialized skills or education. The U.S. Department of Labor defines a specialty occupation as one that “requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.” The H-1B program aims to give U.S. employers access to highly skilled labor while giving specialized employees access to temporary job opportunities and authorization to work in the United States.

New Orleans employers interested in sponsoring employees’ H-1B visas should be aware of the following:

• A bachelor’s or higher degree or equivalent is usually the minimum entry requirement for the specialty position.
• The degree requirement should be common to the industry in parallel positions among similar organizations, or the job should be so complex that it can be performed only by an individual with a degree.
• The employer typically requires a degree or its equivalent for the position.
• The specific duties of the position are so specialized and complex that the knowledge required to perform them is usually associated with attaining a bachelor’s or higher degree.

A worker coming into the country on an H-1B visa must usually meet at least one of the following:

• Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university.
• Hold a foreign degree equivalent to a U.S. bachelor’s or higher required by the specialty occupation from an accredited college or university.
• Hold an unrestricted state license, registration, or certification that authorizes them to practice the specialty occupation fully and immediately engage in that specialty in the state of intended employment.
• Have education, specialized training, and progressively responsible experience equivalent to completing a U.S. bachelor’s or higher degree in the specialty occupation.

Typically, H-1B visas are good for three years, but individuals and companies may be able to renew their visas.

Understanding the H-1B Cap

Due to the incredible popularity of the H-1B program, the U.S. Citizenship and Immigration Services Department caps the number of available new visas at 65,000 annually. An additional 20,000 petitions for those with a master’s degree or higher from a U.S. institution are exempt from this cap. So, USCIS H-1B registrations for FY 2024 total 65,000, with an additional 20,000 visas for foreign workers who earned a master’s degree or higher at a U.S. university. Once the cap is reached, the USCIS stops accepting H-1B petitions for the fiscal year.

The USCIS moved to an electronic registration process for H-1B visas, which saves time, helps cut down on paperwork and reduces costs for employers.

Data from the USCIS shows that the agency receives hundreds of thousands of total registrations annually. Since it almost always receives more registrations than it can accept during the open H-1B registration period, it uses a computer-generated selection process, or lottery, to randomly select the registrants that the Department invites to apply.

Being selected for the lottery does not automatically mean that the Department will issue an H-1B visa. The lottery system simply selects the petitions the department will process. If a registrant is selected by lottery, the employer can submit an H-1B petition on behalf of the prospective employee. The USCIS will then process the selected petitions. If approved, the worker can obtain an H-1B visa to begin or continue employment in the U.S.

How the Cap Impacts New Orleans Employers

If you’re considering H-1B registration, there are a few things you should know about its impact on New Orleans employers. First, the low cap on H-1B visas makes it challenging for companies to use the unique skills that foreign workers bring. Although the lottery randomly selects petitions, the process is highly competitive. It takes time and money for employers and U.S. job seekers to register and apply for the H-1B visa program, with no guarantee that a position or worker will be available at the end of the process.

Success rates for H-1B visa applications are low. Last year, H-1B lottery results show about 14.6 percent of such applicants were selected for a visa, according to Forbes. At the same time, successful visas are concentrated in the hands of a few dozen companies that thoroughly understand the application process and have the resources to invest in it. The State Science and Technology Institute (SSTI) found that the top 30 H-1B employers account for 40 percent of the 85,000 such visas issued annually and that the top 13 firms have over 20 percent of the cap. New Orleans employers should be aware of the long odds of a successful application and should allocate their resources accordingly.

Contact a Skilled Louisiana H-1B Visa Lawyer for Help

Are you a New Orleans employer interested in USCIS H-1B registration for FY 2024? If so, the Law Office of James A. Graham can help you by:

• Assessing your prospective position to confirm its eligibility
• Preparing and filing documents with the Department of Labor and the Department of Homeland Security
• Communicating with U.S. Citizenship and Immigration Services on your behalf
• Complying with audits as necessary
• Representing you at any hearings or appeals

The H-1B visa application process is a complicated one, and it’s not something you should attempt to do alone. Instead, contact our office today to set up a confidential legal consultation. We take the time to listen to you and find proactive solutions to your situation.