After graduation from a University, F-1 or J-1 program, many aliens want to continue to work and reside in the United States instead of returning to their home countries. One potential solution for an alien is to obtain a H-1B visa, which allows that individual the ability to continue to work and live 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 skilled workers to fill open employment positions, based upon a shortage of available United States workers to fill the job position. Although many (but not all) of aliens are in the science, technology, engineering, and mathematics (STEM) fields, H1-Bs visas apply to a variety of skilled, professional job positions.
The H-1B petitioner must prove: the employment is for a “specialty occupation”, which means that the entry level educational requirement is at least a bachelor degree in fields related to the employment; the alien qualifies as a professional; and that Labor Condition Application (LCA) is certified by the United States Department of Labor. However, aliens who do not have advanced degrees may (in some, but not all, cases) substitute work experience to compensate for the missing educational requirement.
When it comes to hiring aliens to work for a business, corporation, or other company in the United States, the US federal government has a policy objective to attempt to protect United States workers from foreign labor competition. Employers are prohibited from saturating the job market with cheap foreign labor that is willing to work for less money. Employers must pay aliens who obtain 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 alien’s employer, 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 notify their existing workers with notice of the employer’s intention to hire an H1-B worker.
The alien’s H1-B petition is submitted to the USCIS, which is the governmental agency with the responsibility to review, process, and adjudicate all H1-B visa petitions. According to 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 opening of the submission period. Therefore, the H1-B petition must be submitted as early as allowable to give the alien 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 available H1-B visas which are available. in this case an “H1-B lottery” is conducted 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 aliens 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 H1-B cap limitations.
The alien who receives an H1-B visa is allowed to have “dual intent”, which means that the alien can intend to remain in the United States for either a temporary or permanent length of time. Many aliens who obtain a H1-B visa eventually seek to obtain Lawful Permanent Residency, provided that an employer is willing to file an employment based green card application to sponsor the alien employee.
A business immigration lawyer with many years of successful 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. Contact Hilf & Hilf, PLC today in order to obtain excellent legal representation from highly regarded immigration legal professionals.