After receiving a University or College degree, the completion of an F-1 program, or the completion of a J-1 program, many non-citizens desire a way to legally work in the United States. An H-1B visa is a potential solution, which permits the non-citizen to work legally in the United States for up to a total of 6 years. H1-B visas, under US law, provide a means for companies and organizations 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 petitions are in science, technology, engineering, and mathematics related jobs; however H1-Bs visas apply to a diverse array of other skilled, professional job openings.
The petitioner for the H1-B must establish to the US Citizenship and Immigration Services (USCIS) a number of mandatory conditions: 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 non-citizens who never completed or obtained advanced college/university degrees are still lawfully able to receive H1-B visas by substituting their work experience for the missing educational component.
The United States government wants to protect United States workers from non-citizen labor competition, and encourage the hiring of US citizens and green card holders over all other qualified workers. Companies and organizations operating in the US cannot legally hire cheap foreign labor to try and reduce their bottom lines. H1-B laws require payment of wages to any foreign worker to be 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). With every H1-B application the company or organization must attest that the employment of the non-citizen will not negatively affect the wages and working conditions of similarly employed US workers, and the company or organization must also notify its own workers of the its’ intention to hire an H1-B worker.
The US government imposes a “H-1B cap”, so there are only a limited number of H1-Bs that will be authorized and processed each year by the USCIS. Based upon the large numbers of H1-B applicants competing 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 rejected from consideration. One exception is for some foreign workers at non-profit organizations, research institutes, educational facilities, and hospitals, which are allowed to petition the non-citizen worker at any time during the year without cap considerations.
“Dual intent” is permitted for non-citizen workers who successfully win the “H1-B lottery” and receive an H1-B visa from the USCIS, which means that the non citizen is permitted to maintain an intent to remain in the United States on a temporary or permanent basis. In many cases a company or organization eventually petitions for an employment based green card application to sponsor the non-citizen worker, which allows the the non-citizen worker to become a green card holder (Lawful Permanent Resident).
It is recommended for you to retain attorney Sufen Hilf of Hilf & Hilf, PLC to handle your H1-B file for a variety of reasons: first, Immigration laws are constantly subject to change, and you need someone who is up to date on changes in law and policy to properly handle your file; 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 great immigration law representation when it comes to all immigration issues, including H1-B petitions.