After graduation from a United States 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 this country. The best solution (and possibly the only 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 corporations and other companies located in the United States 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.
In general, the petitioner seeking H-1B status must establish that: the job position is a “specialty occupation”, which means that 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. However, there are instances where 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 in the United States, the federal government has a clear policy directive to try to protect United States workers from foreign competition. Employers are not allowed to undercut the job market with cheap foreign labor and must 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 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, must 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 United States 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 United States Citizenship and Immigration Services (USCIS), which is in charge of reviewing, processing, and adjudicating the H1-B petitions. There are limitations under federal law as to the number of H1-Bs which the US government allows 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 very crucial that the H1-B petition is filed early enough to give the prospective foreign worker a chance to obtain an H1-B visa. In recent years the number of H1-B petitions submitted greatly exceeded the number of allowable H1-B visas 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 some research institutes, hospitals, educational facilities, and non-profit organizations are exempt from the H1-B cap requirements, which allows employers to petition the foreign employee which they wish to use at any time during the year.
There are unavoidable governmental filing fees for H1-B applications, in addition to the cost of the immigration lawyer handling the case. In most instances the US based employer of the foreign worker is required to pay the applicable governmental filing fee, however in some circumstances the employee can contribute some part of the fee.
The H1-B applicant, unlike many US visa applicants, is permitted to have dual intent. This means that the foreign worker can intend to remain in the US for either a temporary or permanent length of time. Many foreigners who successfully receive H1-B status eventually apply to adjust their status to obtain Lawful Permanent Residency (green card status), provided that a US employer is willing to file an employment based green card application to sponsor the foreign worker who desires to obtain Lawful Permanent Residency.
It is vital to have an experienced and competent H1-B 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. For your H1-B petition and other employment based immigration issues, you should immediately contact Hilf & Hilf, PLC.