After graduation from a university and/or completion of a F-1 or J-1 program, many aliens have a desire to continue to reside and work in the United States. The solution for many is to obtain H-1B status, which allows those fortunate enough to obtain this status the ability to continue to live and work in the United States for up to a total of 6 years. H1-B visas are a means for companies to obtain international talent to fill job positions, due to a shortage of US workers available to fill the job vacancy, with many (but not all) of these workers are in the science, technology, engineering, and mathematics fields.
Generally, the petitioner seeking H-1B status must establish that: the job position is a “specialty occupation” , meaning the entry level educational requirement is at least a bachelor degree in related fields; the worker qualifies as a professional; and that Labor Condition Application is certified by the Department of Labor. In some instances, an alien who does not have an degree may use his or her work experience to compensate for the missing educational requirement.
When it comes to foreign workers, the United States government has a policy interest to try to protect United States workers. Employers cannot undercut the job market and are required to pay the foreign worker the higher of the actual (the wage paid to other workers in similar positions) or the prevailing wage (the average salary for workers in the relevant area of employment. This is often [but not always] is obtained through a State economic agency where the prospective employment is located). The employer, in addition to paying the higher of the actual or prevailing wage, is required to attest on the Labor Condition Application (that is certified by the US Department of Labor) that the employment of the H1-B worker at issue will not adversely affect the wages and working conditions of similarly employed US workers AND the employer must notify their existing workers with notice of the employer’s intention to hire an H1-B worker.
The H1-B petition is submitted to the USCIS, which is in charge of reviewing, processing, and adjudicating the H1-B petitions. There are limitations under US law as to the number of H1-Bs allowable each year, and in most cases there is an H1-B cap which is reached within days after the beginning of the petition submission period, so it is crucial that the H1-B petition is filed early enough to give the alien a chance to obtain an H1-B visa. In fact, in recent years the number of H1-B petitions greatly exceeded the number permitted under the H1-B cap, and there is a “H1-B lottery” to determine which applications will be processed. However, H1-B employees for some hospitals, some educational facilities, some research institutes, and non-profit organizations are exempt from the H1-B cap requirements, allowing the employer to petition the foreign employee at any time during the year.
There are filing fees for H1-B applications, in addition to the cost of the lawyer involved. Most of the time the employer is required to pay the applicable fee, however in some circumstances the employee can contribute some part of the fee.
The H1-B applicant is permitted to have dual intent. This means that the applicant can intend to remain in the United States for either a temporary or permanent amount of time, and many persons who successfully receive H1-B status apply to adjust their status to obtain Lawful Permanent Residency (green card status). A United States employer must file an employment based green card application to sponsor the foreign worker who desires to obtain lawful permanent residency.
It is extremely important to have a highly skilled, experienced, and professional immigration lawyer, such as Sufen Hilf, to handle your H1-B petition for a variety of reasons: first, Immigration laws are constantly in flux, and you need someone who is up to date on changes in law and policy; second, there are a number of situations that are more heavily scrutinized (for example: third party placement; positions at lower wage levels; H1-B visa transfers; positions that have low qualification or skill requirements; students on F-1 visas and OPT seeking a H1-B visa; etc.) which should be handled by a lawyer; third, there are many technical components to filing the H1-B petition, such as correctly completing and filing the petition, accurately providing prevailing wage information, responding to a Request for Evidence, etc. that also require a competent immigration lawyer’s representation; fourth, having someone to answer questions and provide information concerning the file is an important and stress reducing part of the process. When you absolutely need a well qualified and experienced immigration lawyer for your H1-B petition, you should immediately contact Hilf & Hilf, PLC.