After completion of a University or College degree, a F-1 program, or a J-1 program, many foreign students and individuals prefer to work in the United States rather than immediately return back to their home countries. One potential avenue to receive lawful status is to obtain a H-1B visa, which permits the non-citizen to legally work and live in the United States for up to a total of 6 years. H1-B visas were created by the US government in order to provide a means for companies and corporations in the United States to obtain needed skilled and professional workers that are not citizens, based upon a shortage of available United States workers to fill job positions. The largest number of H1-B visas that are granted each year are in the STEM areas (science, technology, engineering, and mathematics); however H1-Bs visas apply to a surprisingly diverse variety of other skilled and professional job openings.
The petitioner must establish the following to the satisfaction of the US Citizenship and Immigration Services (USCIS) in order to receive an H1-B visa: 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 foreign visitor qualifies as a professional; and that Labor Condition Application (LCA) is certified by the United States Department of Labor. Sometimes non-citizens that do not have advanced degrees are lawfully able to receive H1-B visas by substituting their work experience for the missing educational requirement.
The United States government has a political agenda to protect United States workers from non-citizen competition, and to encourage the hiring of US citizens and green card holders over all other qualified workers. Companies located in the United States are forbidden from hiring cheap foreign labor to try and reduce business expenses. The laws governing H1-B visas mandate that companies 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). Companies required to attest with every H1-B application that the employment of the non-citizen will not negatively affect the working conditions and wages of similarly employed United States workers, and the company must also notify its own workers with notice of the its’ intention to hire an H1-B worker.
Due to a “H-1B cap”, there are only a a limited number of H1-Bs that will be authorized each year by the USCIS, which is often reached within a few days of the beginning of the H1-B submission period. The H1-B petition must be submitted by the beginning of the submission period to give the non-citizen a chance of being successful, because every year the number of H1-B petitions submitted exceeds the number of available H1-B visas. Based upon an overabundance of H1-B applicants, a “H1-B lottery” is conducted by the USCIS to determine which applications will be processed, and which ones will be returned without consideration. Not all H1-Bs are subject to cap restrictions; 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. This allows these types of companies and organizations to petition the non-citizen at any time during the year.
“Dual intent” is allowed for non-citizens who successfully receive an H1-B visa from the USCIS, which means that the individual can intend to remain in the United States temporarily or permanently. In many cases a company or organization is willing and able to file an employment based green card application to sponsor the non-citizen worker, and with this many non-citizens under H1-B visas eventually seek Lawful Permanent Residency.
A smart decision is to engage the services of attorney Sufen Hilf to handle your H1-B issue 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 for legal representation from lawyers with great experience handling H1-B visas.