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Your name is Peiran Tan, born in 1995 to a family of four in the small city of Jiangmen, Guangdong Province, China. When you are 14, your family takes a great leap and sends you overseas to go to school. This decision is the first step toward a college–work–emigration road map, a plan commonly shared by millions of Chinese parents at the time.

You hop between several high schools in Vancouver, BC, where public education is cheaper than in the US. Somewhere along the way, you discover an interest in graphic design. With a passable SAT score and some impassioned scribbling in a personal statement, you are admitted to the University of Washington. Things are working out, and your parents are happy.

An international student from a middle-class family would probably major in a STEM field or law, aiming to be desirable to employers postgraduation. Design isn’t STEM, so you work extra hard in anticipation of the job search. By your last quarter, you’ve already achieved quite a few accomplishments: two design internships, numerous awards and scholarships, a teaching assistantship, a series of freelance gigs, and even some design press coverage. You keep telling yourself everything will be fine with a resume as interesting as yours.

Then graduation hits and with it a slap in the face. You go through lots of interviews—even receive invitations from big industry names—but nothing comes to fruition. Meanwhile, more and more students from your class are enjoying their tranquil postgraduation freelance lives, partaking in gap-year travels, or landing outlandish salaries at Microsoft. You blame your situation on yourself. And time is running out: as the holder of an F-1 student visa, you’re entitled to a one-year postgraduation stay called Optional Practical Training (OPT), so long as you’re employed. If not, your stay could be terminated after 60 days. You need a job, now.

Then you notice a trend: A keen startup founder immediately backs off when you mutter the words “work visa.” A large tech company quickly drops you when HR hears you are a non-STEM international student.1 You start to suspect that it’s not your design skills but the prospect of applying for an H-1B work visa that is deterring companies from hiring you. You know what the H-1B is generally, and that a future employer will need to help you get one, but what exactly does it entail, and why is it holding you back? You start to investigate as frustration and consternation start to sprawl.

A graph showing H-1B visa recipient and approval rates

A company extends an internship offer. Finally! It’s in New York, but you’re willing to move anywhere as long as there’s a job, so you take it, hoping that the company will convert that internship to a full-time position eventually and apply for an H-1B visa for you.

At night after work, you continue investigating the visa. You learn that an H-1B is a nonimmigrant visa that allows an American company to temporarily employ a foreign citizen to work in a “specialty occupation,” one that requires dedicated skills and a bachelor’s degree. The recipient of an H-1B visa can stay in the US for three years, after which they may renew for another three. The renewal may only occur once, giving the recipient six years of legal residence. Six years is long enough to start applying for employment-based green cards (EB-2). That’s why the H-1B enjoys immense popularity among those looking to immigrate to the United States.

You wonder, who is getting these visas? You learn that Indians are currently the largest number of applicants and recipients of H-1B visas, and most of them work in some capacity for outsourcing contractors who serve tech giants like Microsoft and Google. These are tech jobs but low-end ones.

A graph showing the number of H-1B applicants and their wages by employer

You also learn about the cap and the lottery. Every year the number of newly issued H-1B visas is capped. Since 2006, this cap had been set at 85,000, with 20,000 reserved for graduate degree holders (exempt from the cap are applicants working for institutions of higher education, nonprofits, and research institutions and existing visa holders who are reapplying due to an employment change or looking to renew). If the number of applicants exceeds the cap—it does—then the government holds a lottery, randomly awarding 85,000 visas and rejecting the rest. Your application would also be automatically rejected if it doesn't arrive on or before the day the cap is reached, so it is critical that you mail it in as early as possible. The H-1B visa becomes your biggest source of stress.

An infographic showing a breakdown of H-1B visa approvals and rejections

After three months, you’re told that your internship has ended without a full-time offer. You are jobless again and faced once more with the 60-day deadline. You scramble and finally find another job, this time in California, and the company has also agreed to apply for an H-1B visa with you. They want you to start fast, so you hastily pack up and move across the country again. After you arrive, you make sure you’re extremely diligent and often work long hours to demonstrate that you’re better than an American employee and worth the extra effort it takes to go through the visa process. HR departments in large tech companies are usually veterans in H-1B filings, armed with time-perfected standard procedures, go-to law firms, and even overseas offices to temporarily house lottery losers. But your company is too small to have an HR department, so you have to handle the bulk of the application process yourself. You find an immigration lawyer who your boss approves of and brace for the imminent financial burden.

One night you stay late preparing prints for an important client meeting. As you finally walk out of the office, you remember a friend who graduated with a degree in computer science and had been working at Microsoft. Because her degree was classified as STEM, she received 29 more months of OPT stay and finally won the lottery after two draws. Because your degree isn’t STEM, you don’t qualify for the extension, and if you don’t win the lottery the first time, you won’t have an extra chance.

You start to question yourself. Are tech companies really willing to go through the visa hassle to hire designers? Was it the right choice to major in design? The H-1B application deadline is quickly approaching—April 3 for 2018. March is already here. Will you even be able to get into the lottery pool?

You get home, eat, shower, crawl into bed, and check immigration news on your phone. As your face is intermittently illuminated by the screen’s bleak, blue light, you wonder if the college–work–emigration road map is still all that important to you and your family. All this struggle and stress—is it really worth it? Some H-1B-related news pops up, and the headline has the word “Trump” in it, but your brain is too tired. You turn off the screen and go to sleep in the silent darkness.

Steps and materials to apply for an H-1B visa

1 Get a job in the United States.

2 Prepare materials with your employer.

2.1 Education credentials:
The applicant must prove that he/she has at least a bachelor’s degree in order to apply for an H-1B visa. The degree needs to be certified if it was obtained from a non-US institution.

2.2 Determine prevailing wage:
For each job category in each geographical area, there are four levels of prevailing wage, with Level 1 being the lowest and 4 the highest. H-1B applicants must be paid at least a Level 1 wage to apply.

3 Start application.

3.1 File LCA:
The employer must file a Labor Condition Application (LCA) to the US Department of Labor to attest that it has met the wage requirements and eligibility of hiring an H-1B employee. Processing takes one week.

3.2 Fill out Form I-129:
This 36-page form titled Petition for a Foreign Worker is the center of the application. It comes with a base fee of $460.

3.3 Write the job description:
A boilerplate job description usually won’t do. It needs to be carefully crafted to maximally demonstrate the “sophisticated nature” of the H-1B position and thus the necessity of hiring the foreign worker.

4 Pay some hefty fees.

4.1 ACWIA Fee ($1,500):
This was established for the purpose of training equivalent American workers.

4.2 Fraud Prevention and Detection Fee ($500):
This is paid every time an H-1B application is filed (employees from Chile or Singapore are exempt).

4.3 Public Law 114-113 Fee ($4,000):
This is paid if the employer is H-1B dependent (see footnote 7).

4.4 Premium Processing ($1,250):
If an applicant pays this optional fee and submits Form 1-907, the USCIS guarantees to process his/her application in 15 calendar days.

5 Mail it in.
Include Form I-129, the approved LCA, individual checks for each fee, and all related materials, and mail the envelope to USCIS’s drop box. Be sure to mail it in early before the cap is reached every April!

 

NOTES

1. Graduates who majored in STEM fields can apply for an extension of 29 months to their F-1 student visas, significantly increasing their chances of obtaining an H-1B work visa so they can continue living and working in the US due to the cap and lottery system (see next page).
2. The number of H-1B visas issued annually is capped (applicants working for nonprofits, for research institutions, and in higher-ed are exempt, as are applicants with existing H1-B visas changing employers or reapplying for a second term).
3. 1990: The H-1B visa category was established at 65,000 (Jimmy Carter).
4. 1999: American Competitiveness and Workforce Improvement Act (ACWIA), increased the cap to 115,000 (Bill Clinton).
5. 2001: American Competitiveness in the 21st Century Act increased the cap to 195,000 (Bill Clinton). During 2001 to 2003, the cap was not reached.
6. 2004: H-1B Visa Reform Act returns the cap to 65,000 with 20,000 extra for graduate degree holders (George W. Bush).
7. H-1B dependent companies are those with more than 50 employees, half of whom are on H-1B visas.