Using the H-1B visa can be a valuable resource to use to obtain qualified and well-educated foreign workers for your business. There are some facts, however, that any Human Resources department staff member needs to know when the company is considering sponsoring an H-1B employee:
1. There is a cap on the number of H-1B visas issued each year and is set at 65,000
However, there is an additional 20,000 for those potential employees with a Masters Degree or Ph.D if it was acquired from an accredited American college or university.
2. The specialty position for which the H-1B employee is filling may not be subject to the cap
If the employer is a nonprofit, a university or governmental research facility, then there is no cap. Some physicians may also be exempt if the H-1B complies with the waivers granted by the USCIS.
3. If you are a consulting company, you need to be aware that the USCIS regards you with increased scrutiny
You must list all work sites in the H-1B petition and file LCAs (Labor Certification Application) for the job applications and a new LCA filed if the employee goes to a new work site or is paid a different wage. For specific consulting jobs that the foreign worker will be working on, you need to maintain records of contracts, purchase orders or work statements with the end client or risk having the H-1B petition denied. These records may be requested by the USCIS when it submits an RFE or Request for Evidence to your firm. It is essential that you contact your immigration attorney if this occurs to ensure that your record keeping is in compliance.
4. If you want your H-1B employee to stay longer, file an application for Alien Labor Certification one year before the expiration of the 6 years
You can get an H-1B extension for a year and then repeat the process. If an I-140 petition (petition for foreign worker to become permanent resident) was approved for the foreign worker before the end of the 6 years, you can get 3-year extensions provided no permanent visas are available for the I-140 priority date, which are currently well-behind. You can theoretically get an unlimited number of extensions for 1 and 3 years.
5. The first day you can submit an H-1B application is April 1 of any year
If your foreign worker has had an H-1B visa previously, you can submit an H-1B transfer application at any time. These are subject to the quota. Also, you can submit the application any time if you are a nonprofit research organization or educational institution or seeking a physician who has a waiver from the USCIS. You can only submit one application per worker per year though you can seek certification for multiple H-1B workers for a single occupation as listed on the LCA.
If you would like to learn more about sponsoring a foreign employee, please schedule a demo to learn how our team and technology can serve you.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
