Guest Post: Holding Your Breath for an H-1B is Not a Plan – Have a Global Plan for Talent

This is a guest post by Glenn Faulk and Katharine Salem of Luminary Global, LLC.

 H-1B Applicants:

As many human resource professionals know, this April 1-7 is when many overseas employees applying for an H-1B visa will hold their breath to be amongst the lucky 85,000 petitions selected by US Citizenship and Immigration Services (USCIS) for review and (hopefully) approval.

What are the odds your H-1B application will make it? To give some idea, in early April 2015, USCIS received 233,000 petitions to fill both the 65,000 “general-category” H-1B slots and the extra 20,000 petitions reserved for “advanced-degree” professionals (85,000 H-1B slots available).   According to USCIS, if more petitions are received than slots are available, USCIS will use a computer-generated, random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

On top of these odds, even if an H-1B application is initially accepted for processing, small oversights or mistakes in completing the form or in paying the H-1B fee can result in a refused application, leaving the employee and the company scrambling to find alternatives in a very short window of time.

Not allowing for refused applications, 2015 had a raw percentage of a mere 36% likelihood that a particular H-1B petition would be accepted for review.

In these days of global talent, ensuring that your assignees have enough time to consider such things as quotas or lottery systems when filing for a new or renewed status is going to be critical to retaining your hard-won talent.

In addition, for those “Millennial” employees who are in F-1 Optional Practical Training (OPT) or eligible J-1 applicants, pinning hopes on receiving an H-1B to continue their employment could leave young talent struggling with the real loss of their status and uprooting their new careers.  And, it leaves HR scrambling to find other employees to cover the duties of a departing H-1B hopeful.

International Business Travel: “Visa” vs. “Status”

For global immigration purposes, it is not uncommon for employees in a particular US immigration status to require travel abroad for business, pleasure or work.   Employees applying for visas to other countries while resident in the United States are generally referred to as “third-country national” or “TCN” applicants.

TCN applicants submitting visa applications to another country’s consular post in the United States generally must provide evidence that they:

  1. Have valid US status (generally, a status other than tourist or business visitor) at the time of submitting a visa application to the other country’s consular post (i.e., the category of stay and date of expiration noted on the entry stamp and I-94 entry record at time of admission to the United States), and
  2. Can provide evidence of “returnability” to the United States, which generally requires that a TCN applicant have either a US visa stamp or Green Card that is valid for a certain period of time beyond the intended dates of stay and have ability to readily re-enter the United States (i.e., multiple-entry visa).

For H-1B extensions: If an employee is extending his or her H-1B status, and H-4’s for family, please bear in mind that once he or she receives Approval Notice (Form I-797), the employee and approved family members have status to remain in the US.  However, should this employee and/or family members be required to depart the United States, he or she may be required to have a valid H-1B or H-4 visa stamp to apply for a visa to another country or to re-enter the United States.

It is important to factor into H-1B/H-4 extensions when and whether the employee and family extending status will also require applying for a new H-1B/H-4 visa in their passports.  Realising at the eleventh hour that an employee or family member requires a new H-1B/H-4 visa in order to secure authorisation to travel abroad for business or pleasure is not fun for the employee or the company.

For employees who are applying to change status from F-1 or J-1 status, the same rules apply for those employees the company is considering for international business travel.

In addition, HR should factor in the time needed to arrange for a new international assignment with work authorization, or repatriation to the employee’s home country. If children are included, add to this the time needed to transfer schools before a new school year begins.

The Bottom Line: 

Two months from now, USCIS will open the H-1B petition queue.

Now is the time for H-1B applicants and HR to take time to discuss the “What if?” of not receiving a slot or if an H-1B application is refused.  It’s not a pleasant discussion to have, but as the US economy gains some steam, the odds this year of not getting an H-1B may be higher than last year.

Also, as international business travel usually has tight turn-around times for the company and the employee, H-1B/H-4 visa extension applicants and F-1/J-1 change of status applicants should approach HR about future business travel plans outside of the United States to determine timing and strategy to secure new H-1B/H-4 or F-1/J-1 visa stamps.

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Written by Glenn Faulk and Katharine Salem for Luminary Global LLC. 

Luminary Global Immigration is a consulting firm offering global immigration solutions to entrepreneurs, small businesses, and multinational corporations. Our services are for all outbound destination countries, except the United States. For any matters pertaining solely to inbound US immigration, we provide referrals and support to a trusted network of U.S. firms.

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