After graduation from a university and/or completion of a F-1 or J-1 program, many foreigners have a strong desire to continue to reside and work in the United States. The best solution for many foreigners 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 and corporations to obtain needed 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 foreign worker qualifies as a professional; and that Labor Condition Application (LCA) is certified by the Department of Labor. In some instances, the foreigner who does not have an degree may substitute his or her work experience to compensate for the missing educational requirement.
When it comes to hiring foreign workers, the US government has a clear policy directive to try to protect US workers. Employers cannot undercut the job market with cheap foreign labor 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 information is often [but not always] obtained through a State economic agency where the prospective employment opportunity 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 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 for the foreign worker is submitted to the USCIS, which is in charge of reviewing, processing, and adjudicating the H1-B petitions. There are limitations under United States 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. Therefore, 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 submitted greatly exceeded the number allowable 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 some educational facilities, some research institutes, hospitals, and non-profit organizations are exempt from the H1-B cap requirements, which allows employers to petition the foreign employee at any time during the year.
There are unavoidable filing fees for H1-B applications, in addition to the cost of the immigration lawyer involved. In most cases the employer of the foreign worker is required to pay the applicable fee, however in some circumstances the employee can contribute some part of the fee.
Unlike many immigration law visas, The H1-B applicant is permitted to have dual intent. This means that the foreign worker 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 eventually apply to adjust their status to obtain Lawful Permanent Residency (green card status). However, a US 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 an experienced, competent, and professional immigration lawyer, such as Sufen Hilf, to handle your H1-B petition for a variety of reasons: first, Immigration laws are constantly subject to change, 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 and other employment based immigration issues, you should immediately contact Hilf & Hilf, PLC.