For over a decade, the H-1B program has been the most popular nonimmigrant visa in the U.S. Many times, the annual limit of 85,000 visas is reached within a few minutes of the lottery window opening for application submission. In the 2019 fiscal year, almost 200,000 petitions were submitted. From what we know, this stiff competition will likely continue for years to come.
However, there have been recent political motions to attempt to restrict H-1B issuance to those who earn a minimum of a certain salary. Therefore, H-1B petitioners and beneficiaries need to understand how the program works and where it is headed in order to maximize your chances of approval.
H-1B Visa Overview
The H-1B visa is a nonimmigrant temporary classification for foreign nationals who wish to live and work temporarily in the U.S. It is divided into three subgroups:
- Specialty Occupations
- DOD Researchers and Development Project Worker
- Fashion Models
The visa application must be sponsored by a qualified U.S.-based organization, meaning you must have gotten an offer for a job or an internship in the United States before you can apply.
H-1B Visa Salary
There is also a minimum wage for a job under H-1B status. One of the reasons why the government regularly shows so much concern over the H-1B visa program is to ensure that both the employees and employers get fair treatment in terms of salary and compensation.
U.S. employers hiring H-1B workers are required by the Department of Labor (DOL) to provide documentation showing their ability and readiness to pay the prevailing wage or actual wage.
Keep in mind that this does not in any way mean that there is uniformity in all H-1B worker salaries. What it indicates is that an employer cannot pay you below a certain amount, which is determined based mainly on your employment location, industry, and job title.
What is the Difference Between the Prevailing Wage and Actual Wage?
In the United States labor market, there are different types of wages, which include the minimum wage, living wage, prevailing wage, and actual wage. Salaries are categorized under these terms to ensure that no worker gets less than what is considered appropriate. Your H-1B visa salary is determined based on the prevailing wage or actual wage.
How is the H-1B Prevailing Wage Determined?
The prevailing wage, according to the DOL, is “the average salary paid to similarly employed workers in a specific occupation in the area of intended employment.” This can be determined using the collective union contract, which contains wage rates applicable to the profession. In an occupation not covered by a union contract, the weighted average of salaries paid to other employers in similar employment in the geographic location can be used to determine the prevailing wage.
How is the H-1B Actual Wage Determined?
The actual wage, as defined by the U.S. DOL is “the wage rate paid by an employer to those with experience and qualifications similar to the H-1B employee’s qualifications and experience for the specific job in question at the place of employment.” The actual wage can sometimes be very difficult to determine, especially if the employee is the first person to be hired for that job position. Employers must compare the actual wage with the prevailing wage, and if it is lower than the prevailing wage, then the prevailing wage must be paid. Keep in mind that an H-1B worker must not be paid below the prevailing wage.
Average H-1B Visa Salary in 2019
One of the government’s new initiatives is the provision of reports data that gives up-to-date information about the H-1B program, including a list of H-1B employers and average salary. While paychecks vary wildly from organization to organization, the average H-1B visa salary, according to the 2019 edition, is $89,779. For those in the tech industry, the average salary is $93,244.
H-1B Visa Requirements
The H-1B visa is usually referred to as a lottery because the selected petitions are randomly picked. It is also relatively easier to meet the eligibility criteria compared to some other visa types. Annually, the USCIS randomly selects a total of 85,000 H-1B petitions for processing and returns the fees and petitions to those whose applications aren’t selected. Every applicant must fulfill the following criteria:
- You must have a job offer that qualifies for the USCIS definition of a specialty occupation or a DOD research and development project. Fashion models of prominence and distinguished ability can also qualify.
- You must have at least a bachelor’s degree in the job’s specialty field or be a fashion model with exceptional ability and merit.
Getting an H-1B visa for a specialty occupation requires theoretical and practical expertise in different fields, such as IT, finance, accounting, medicine, mathematics, science, etc. The job offer must meet one of the following criteria to qualify as a specialty occupation:
- The minimum entry requirement is a bachelor’s degree or higher, or its equivalent. The degree must be common in the industry or required to perform the job.
- The employer normally requires at least this degree or its equivalent for the job
- The nature of the tasks is so specialized that required knowledge to carry them out is usually associated with the attainment of a minimum of bachelor’s degree
H-1B Program: Possible Future
In the past few years, the Trump administration has brought up various regulations that impacted the immigration process, especially the H-1B program. With the recent happening, we can predict the H-1B visa demands going forward.
Due to the recent changes, some people are of the opinion that there would be fewer H-1B petitions going forward. However, from our experience, we can predict that there will continue to be a high demand for the program. Our prediction is based on several factors that influence the visa category.
Over the past four years, there has been an average of 200,000 petitions submitted:
- 2016: 233,000
- 2017: 236,000
- 2018: 199,000
- 2019: 190,098
- 2020: 201,011
This trend will likely continue next going forward. The healthy state of the economy will also contribute tremendously to the future of the program. As the economy grows, the unemployment rate will continue to drop, and there will be a shortage of available highly skilled workers.
Thus, many companies, particularly in the tech industry, will need to rely on H-1B professionals to fill the positions. The increase in the number of international STEM students is another factor suggesting that demand for H-1B visas will remain high. Many of these students will need an H-B visa to work in the U.S.
The USCIS has published a final H-1B rule that will change the process for the lottery starting in fiscal year 2021. According to the new rule, petitioners will have to register their H-1B beneficiaries before submitting the entire petition with supporting evidence. Because of this development, employers will need to apply for registrations earlier than April.
With the above historical trends and changes, it seems that competition for the H-1B visa is going to continue to be stiff. Therefore, it is essential to be thorough in your application process.
You can improve your chances by submitting petitions with different employers. While employers are not allowed to file multiple petitions for a beneficiary, the beneficiary is allowed to file with multiple employers.
H-1B Visa Cap Predictions
The cap refers to the congressionally mandated limit of H-1B visas that are issued per fiscal year. A fiscal year is from October 1 to September 30 of the following year. We can predict that the annual numeric limit of 85,000 H-1B visas will remain in the next fiscal year. Currently, the H-1B annual cap is 65,000 from the regular pool and 20,000 for advanced degree category. However, there are certain beneficiaries who are exempted from the cap.
H-1B employers are allowed to start submitting their petitions six months prior to the selected H-1B date within the lottery window that opens in April. The H-1B is the most popular nonimmigrant work visa in the U.S., which makes the cap to be reached early every year. It is best for employers to submit their applications as soon as the lottery window opens for the beginning of the new fiscal year in October.
Who is Exempt from the H-1B Visa Cap?
If your job offer is from a university, government research organization, or nonprofit entity, you will be exempt from the annual cap. These organizations are allowed to submit their H-1B petitions at any time during the year.
However, if you are planning to change jobs from a cap-exempt employer to an employer that is not exempt, your new petition will be subject to the annual cap.
How VisaNation Law Group Immigration Attorneys Can Help
With the constant changes and competitions in the H-1B program, the denial rate is on the rise. Additionally, if the H-1B visa salary requirements are changed, many people may be excluded from obtaining an H-1B visa. Therefore, it is always best to stay up-to-date and understand the filing process and requirements before getting started.
VisaNation Law Group’s highly experienced team of immigration attorneys have extensive knowledge of the H-1B application process. The team of dedicated lawyers are always ready to provide you with quality legal guidance and representation. From gathering supporting evidence to dealing with RFE’s we help you every step of the way. You can schedule a consultation with us today by filling out this contact form.