After graduation from a United States college program and/or completion of a F-1 or J-1 program, many foreigners want to continue to reside and work in this country. One solution for many individuals is to obtain H-1B status, which allows him or her 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 way for businesses, 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 foreign workers in the science, technology, engineering, and mathematics fields.
The petitioner for H-1B status must establish that: the employment 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 United States Department of Labor. However, there are instances where the foreign worker, who does not have an degree, may substitute his or her work experience to compensate for the missing educational requirement.
When it comes to lawfully hiring foreigners in the United States, the US federal government has a clear policy directive to attempt to protect United States workers from foreign competition. Employers are never allowed to undercut the job market with cheap foreign workers and must pay the foreign employee 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. The wage information is often 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, must attest on the Labor Condition Application that the employment of the H1-B worker at issue will not negatively affect the working conditions and wages of similarly employed United States workers AND the employer must even 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 the government agency with the responsibility of reviewing, processing, and adjudicating H1-B petitions. There are limitations under US law as to the number of H1-Bs which the US government allows each year (an “H1-B cap”), which is reached within days after the beginning of the petition submission period. Therefore, it is very critical that the H1-B petition is filed early enough to give the foreign worker a chance to obtain an H1-B visa before the slots are filled. Recently, the number of H1-B petitions submitted greatly exceeds the number of available H1-B visas under the “H1-B cap”, and a “H1-B lottery” is implemented to determine which applications will be processed. However, H1-B visas for for foreign workers at research institutes, hospitals, educational facilities, and non-profit organizations are often exempt from the H1-B cap requirements, which allows employers to petition the foreign employee at any time during the year.
There are potentially thousands of dollars in governmental filing fees for H1-B applications, in addition to the necessary cost of the immigration lawyer handling the case. In most instances the employer of the foreign worker is required to pay these governmental filing fees, however in some circumstances the employee can contribute some part of the fee.
Unlike many US visas, the H1-B visa holder is permitted to have dual intent, meaning that the foreign worker can intend to remain in the US for either a temporary or permanent length of time. Many foreign workers who receive H1-B status eventually apply to adjust their status to obtain a green card (Lawful Permanent Residency), 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 highly recommended for the employer to obtain an experienced and competent H1-B immigration lawyer, such as Sufen Hilf, to handle any and all H1-B petitions 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 any employment based immigration issues such as H1-B visas, you should immediately contact Hilf & Hilf, PLC.