US employers seeking to hire non-US workers must ensure that these individuals have the proper employment authorization from the US government. There are a number of “visas” available for such purposes but the H-1B visa is the most popular. The H-1B visa requires an employer to demonstrate that the position offered to the individual is one that requires at least a university degree in a specific field of study (generic liberal arts degrees or even general business degrees do not qualify), that the individual have the degree or its equivalent in work experience, and that the employer is paying the higher of either the actual wage it is paying other similarly situated US workers or the prevailing wage as determined by the US Department of Labor (DOL). (Of note is that on October 8, 2020, the DOL restructured its wage levels without notice whereby effectively increasing the wage for most occupations by $30,000-40,000. Where there is a lack of sufficient data according to the DOL’s calculations, thousands of occupations defaulted to a wage of $208,000 per year. Two separate lawsuits have been filed to challenge this restructuring.)

Due to the popularity of the H-1B visa, there has been a shortage and individuals who have never had an H-1B visa would need their employer to participate in a lottery each spring for such a visa. The rate of success has been roughly 30-35%. Up to now, the lottery has been conducted in two rounds – one for those with U.S. advanced degrees and then the general pool. Other than the degree criterion, the lottery has been random. Today, the Department of Homeland Security proposed a rule that would allocate H-1B visas according to wage levels, with a preference for the higher levels first. For now, this is just a proposal. Stay tuned for the outcome after the notice and comment period.

The above has been provided for educational purposes only. To see how this applies to your situation, please contact your Clark Lau LLC attorney. Also, this does not apply to those individuals who have already been counted in the H-1B lottery.