After completion of a University, a F-1 program, or a J-1 program, many foreign people prefer to work in the United States rather than immediately return back home. One lawful course of action is to obtain a H-1B visa, which allows the foreigner to legally work and live in the United States for up to a total of 6 years. In a nutshell, H1-B visas are used by companies and corporations in the United States to legally obtain needed skilled, professional workers that are foreigners, based upon a shortage of available United States workers to fill the open job positions. The largest number of H1-B visas are in the science, technology, engineering, and mathematics (STEM) areas, however H1-Bs visas apply to a surprisingly diverse variety of skilled, professional job positions outside of STEM fields.
The H-1B petitioner must prove to the satisfaction of the USCIS the following: 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. Sometimes foreign persons without advanced degrees are lawfully able to receive H1-B visas by substituting their work experience to compensate for the missing educational requirement. US Citizenship and Immigration Services (USCIS) is in charge of processing and adjudicating all H1-B visa petitions to make sure that all the legal requirements are met.
The government has a longstanding policy to protect United States workers from foreign worker competition, and to encourage the hiring of US citizens and green card holders over all other workers. Companies and corporations located in the United States are prohibited from hiring cheap foreign labor. H1-B regulations mandate that companies and corporations pay any 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). The company or corporate employer must attest that the employment of the foreign worker will not negatively affect the working conditions and wages of similarly employed United States workers, and the company or corporate employer must also notify its workers with notice of the employer’s intention to hire an H1-B worker.
Due to “H-1B cap” restrictions, there are only a a limited number of H1-Bs that will be approved each year by the USCIS, which is often reached within days after the opening of the H1-B submission period. The H1-B petition must be submitted ASAP to give the foreign worker a chance of being successful before the slots are filled by others. Every year, the number of H1-B petitions submitted exceeds the number of available H1-B visas, so an “H1-B lottery” is conducted by the USCIS to determine which applications will be processed, and which ones will be rejected. However, H1-B applications for foreign workers at non-profit organizations, research institutes, educational facilities, and hospitals are often not subject to the H1-B cap restrictions, which allows companies and corporations to petition the foreign worker at any time during the year.
“Dual intent” is allowed for foreigners who successfully received an H1-B visa, which means that he or she can intend to remain in the United States temporarily or permanently. In many cases a company or corporate employer of a foreign worker is willing to file an employment based green card application to sponsor the alien employee, and with this many foreigners under H1-B visas eventually seek Lawful Permanent Residency.
A proven and effective immigration lawyer, such as Sufen Hilf, is highly 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 for any and all of your immigration needs, including H1-B visa petitions.