After completion of a University or College degree, a F-1 program, or a J-1 program, many non-citizens desire a legal way to work in the United States rather than immediately return back to their place of citizenship. One potential solution is to obtain a H-1B visa, which permits the person to legally work in the United States for up to a total of 6 years. H1-B visas are authorized by the US government in order to provide a means for companies and organizations in the United States to obtain needed skilled and professional non-citizen workers, based upon a shortage of available United States workers to fill job positions. The largest number of H1-B visas are in the STEM areas (science, technology, engineering, and mathematics); however H1-Bs visas apply to a surprisingly diverse array of other skilled and professional job openings.
The petitioner for the H1-B must establish the following to the satisfaction of the US Citizenship and Immigration Services (USCIS) in order to receive approval: 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. Some persons without 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 strong interest in protecting United States workers from non-citizen competition, and encouraging the hiring of US citizens and green card holders over all other qualified workers. Companies and organizations located in the United States are forbidden from hiring cheap foreign labor to try and reduce their bottom lines. H1-B related laws 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 and organizations are required to attest with every H1-B application that the employment of the non-citizen will not negatively affect the wages and working conditions of similarly employed United States workers, and the company must also notify its own workers of the its’ intention to hire an H1-B worker.
Due to a “H-1B cap”, there are only a limited number of H1-Bs that will be authorized and processed each year by the USCIS, which is often reached within days of the beginning of the H1-B submission period. Based upon an overabundance of H1-B applicants for the available slots, a “H1-B lottery” is conducted by the USCIS to determine which applications will be processed, and which ones will be returned without consideration. It is important to know that 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, allowing these types of companies and organizations to petition the non-citizen worker at any time during the year.
“Dual intent” is permitted for non-citizens who successfully receive an H1-B visa from the USCIS, which means that the foreigner can have an intent to remain in the United States on a temporary or permanent basis. In many cases a company or organization eventually file an employment based green card application to sponsor the non-citizen worker so the non-citizen worker can obtain a green card.
A smart decision is to retain attorney Sufen Hilf of Hilf & Hilf, PLC 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 confident and experienced immigration law representation.