After graduation from a University/College/F-1 or J-1 program, many foreign nationals want to continue to reside and work in the United States instead of returning to their home countries. One potential solution for such a foreign national is to obtain a H-1B visa, 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 located in the United States to obtain needed talent to fill open employment positions, based upon a shortage of available United States workers to fill the job vacancy. Many (but not all) of these foreign nationals are in the science, technology, engineering, and mathematics (STEM) fields. However, H1-Bs are not limited to STEM fields and often apply to a variety of professional and skilled job positions.
The H-1B petitioner must prove in his or her application that: the employment opportunity is a “specialty occupation”, which means that the entry level educational requirement is at least a bachelor degree in fields related to the employment; the foreign national qualifies as a professional; and that Labor Condition Application (LCA) is certified by the United States Department of Labor. However, foreign nationals who do not have advanced degrees may (in some instances) substitute work experience to compensate for the missing educational requirement.
When it comes to hiring foreign nationals to work for a business entity in the United States, the US federal government has a clear and important policy objective to attempt to protect United States workers from foreign competition. Employers are prohibited from undercutting the job market with cheap labor who is willing to work for less, and employers must pay foreign nationals under H1-B visas 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 if often obtained through a State economic agency where the prospective employment is located). The employer of the foreign national, in addition to paying the higher of the actual or prevailing wage, must attest that the employment of the H1-B worker will not negatively affect the working conditions and wages of similarly employed United States workers AND the employer must even notify existing workers with notice of the employer’s intention to hire an H1-B worker.
The foreign national’s H1-B petition is submitted to the USCIS, which is the agency within the US government in charge of reviewing, processing, and adjudicating all H1-B petitions. Based upon current US law, there are limitations as to the number of H1-Bs that will be approved each year (an “H1-B cap”), which is often reached within days after the beginning of the petition submission period. Therefore, the H1-B petition must be submitted as early as possible into H1-B season to give the foreign national a chance to obtain an H1-B visa before the slots are filled by others. Recently, the number of H1-B petitions submitted to fill US job positions greatly exceeded the number of H1-B visa which are available under the “H1-B cap” and an “H1-B lottery” is conducted when the applications out number the available slots to determine which applications will be processed, and which ones will be rejected. One caveat with H1-B applications is that is that H1-B visas for for foreign nationals at research institutes, educational facilities, hospitals, and non-profit organizations are often H1-B cap exempt, which allows employers to petition the prospective employee at any time during the year without limitation.
There are usually thousands of dollars in governmental filing fees for H1-B visa applications, in addition to the necessary cost of the immigration lawyer handling the case (the government filing fee is returned if the applicant is rejected; the attorney fee, however, is not returned because the legal service was performed). In most (but not all) instances the employer of the foreign national is obligated to fully pay these governmental filing fees.
The H1-B visa holder is allowed to have “dual intent”, which means that the foreign national can intend to remain in the United States for either a temporary or permanent length of time. Many foreign nationals who obtain a H1-B visa eventually apply to adjust their status to obtain Lawful Permanent Residency, provided that an employer is willing to file an employment based green card application to sponsor the foreign national employee.
A H1-B immigration lawyer with many years of experience, such as Sufen Hilf, is recommended to handle any and all H1-B petitions for a variety of reasons: first, Immigration laws are constantly subject to modification and 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 immigration related issues you should contact Hilf & Hilf, PLC in order to obtain excellent legal representation from highly regarded legal professionals in Michigan.