The initial purpose of the H-1B visa was to allow US companies to hire foreign workers to cover skill gaps in the US labour market.
To be eligible for admission under the current H-1B visa system, an applicant has to meet the following criteria:
(a) The candidate has to work in a "specialty occupation."
(b) A petitioning employer who provides compensation equal to the "prevailing wage rate" in the relevant State and profession must support the application; (c) the applicant must have an offer of permanent employment in the US.
Due to the complexities of the "speciality occupation" criterion, the onerous nature of the "prevailing wage" requirement, and the yearly restriction on the number of H-1B visas that may be obtained, H-1B visas are famously difficult to get.
Compounding these challenges are the obstacles that petitioning employers must overcome. In the current system, for any H-1B applicant without a master's degree who is being offered annual remuneration of less than $60,000, the petitioning employer who is considered to be "H-1B dependant" within the meaning of the applicable legislation is required to make several attestations within the Labour Condition Application. The employer must guarantee, among other things, that no similarly employed US worker will be replaced within a given time frame and testify that he has taken or will take all reasonable steps to comply with industry norms in order to hire US workers for the relevant function. As a result, potential petitioning employers have a heavy cost burden due to the certification requirements.
Regretfully, it looks like getting an H-1B visa will get harder and more. The Protect and Grow American Jobs Bill was filed earlier this month in the House of Representatives by Republican congressman from California, according to a US immigration lawyer in London. The bill's stated goal is to stop US corporations from replacing US workers with less expensive foreign experts.
No matter the type of job, the number of hours worked, industry-wide pay scales, or even the location within the US, any H-1B dependent employer who pays an H-1B applicant an annual salary of less than $100,000 would have to comply with the additional attestation requirements under the proposed Protect and Grow American Jobs Act.To put it briefly, companies would need to provide proof that they are unable to locate a US person who can perform the job if they are giving an H-1B worker less than $100,000 annually. The controversial Bill aims to eliminate the petitioning businesses' exemption from attestation requirements that applies to H-1B workers with master's degrees.
According to a US immigration lawyer in London, the proposed amendments will safeguard American workers by offering a strong deterrent to US companies who fire US workers in favour of H-1B workers. However, we believe that the proposed reforms are at odds with market dynamics because they would make it much more expensive for US businesses to address talent shortages and because they could discourage many highly skilled foreign individuals from accepting job offers in the US. The proposed Bill will, in fact, severely impair the viability of the H-1B visa and impose a heavy financial burden on smaller enterprises.
As of this writing, it is unclear if the suggested modifications will take effect before the new H-1B season begins on April 1, 2017.
The obstacles presented by the suggested changes are manageable, just like they are with the majority of US immigration laws. There is no reason why the new law should lessen your chances of success if you prepare carefully, carefully consider the facts, and vigorously and persuasively advocate your position. Give us a call right now for guidance on how to proceed with your H-1B visa application and maybe fulfill your American dream.
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