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When Should a U.S. Employer Engage in the H-1B Process?

Updated: Aug 1, 2022

Factors to Consider Before Engaging in the H-1B Process

H-1B is a business-driven process. Employers should engage in this process only if there is a business need to hire a specific worker for a specific position. Engaging in the H-1B process is not a favor to a foreign worker. If there is no business need, then employers should not consider pursuing this process.

Simply put, an employer should embark on the H-1B journey only when the employer REALLY needs the foreign worker to meet a business need.

Theory: “Best in Class”

U.S. employers may use the H-1B process to hire the best candidates on the market. There is no labor shortage requirement for H-1B visas. In theory, the H-1B visa enables U.S. employers offer jobs for professional positions that require, at least, a Bachelor’s degree in a specific specialty to the most talented candidates irrespective of their country of citizenship.

Reality: Addressing Professional Occupational Shortages

Because there is a cap on the number of H-1B visas, this shortage of H-1B visas has influenced how U.S. employers use H-1B visas. For example, while the employer may be eligible to file an H-1B petition for a counselor position with the educational requirement of a psychology degree, in practice, employers currently shy away from going through considerable hurdles of the H-1B process for positions that can be filled by U.S. Workers.

Faced with the realities of the H-1B process, such as uncertainty of whether H-1B numbers are available, uncertainty as to whether the H-1B petition will be approved, waiting times, and considerable filing and legal fees, many U.S. employers get involved in the H-1B process when they have a difficult time finding qualified U.S. workers. That is why for years now U.S. employers have been filing an overwhelming majority of H-1B petitions in shortage occupations for engineering and IT positions in specific fields.

An H-1B is Not a Favor for a Friend

Employers should not use the H-1B process to help a friend or relative that is not really needed in the business. If the employer is “helping” a foreign national rather than addressing the employer’s business need, the employer might end up violating federal law. Such H-1B will likely bring nothing but trouble to the employer.

What is an H-1B: A Temporary Work Visa/Status

H-1B visa/status is a tool available to U.S. employers to temporarily employ foreign nationals in specialty occupations. Usually they are used for difficult to fill positions in the fields of computer science, engineering, teaching, finance, and other fields providing that the proposed H-1B job is a “specialty occupation.” A specialty occupation in our minds begins with this question: “Does the job require at least a bachelor’s degree in a specific field?”

What it is Not: A Permanent Solution to Keeping the Worker

H-1B is it not a green card, also known as permanent resident alien status. If the U.S. employer is interested in keeping the worker long-term, the employer should explore employment-based green card process for the worker. The H-1B may serve as a temporary visa allowing temporary employment of the worker while the employer is engaged in the employment-based green card process regarding the worker.

Can a Foreign Worker Apply for an H-1B?

No. Only U.S. employers may apply for H-1B classification for foreign workers.

When can the US Employer File for an H-1B?

If the employer is filing a new H-1B subject to the cap, then the time to start preparing is now! The earliest day one can file for a cap H-1B for 2021 is April 1, 2021, for a start date of October 1, 2021. Last year, the government conducted an H-1B lottery process before April 1. At our firm, we started working on all of our clients’ H-1B Petitions in January of last year, so that as soon as they were selected in the cap lottery, we were ready to file our Petitions on April 1. This proved to be a successful strategy because we achieved 100% approval of our Petitions, and very quickly. Being ready to file Petitions at the earliest filing date is important for ensuring continuing work authorization for the foreign nationals who are usually already working for the Employer on temporary work authorization (OPT and CPT).

Leyla McMullen

Business Immigration Attorney


NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to your situation

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.


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