US Businesses Should Take Advantage of the H-1B Visa before Costs Rise
By Umar Akbar Ahmed, Esq.
Did you know the H-1B visa, a popular route for US companies to hire foreigners for specialty positions, has the added benefit of ensuring American companies can remain globally competitive, thereby improving the US economy and creating more jobs for the US workforce?
Savvy companies have long taken advantage of the unique benefits offered by the H-1B, but the process as it stands now may be about to be shaken up, so take note. There has been a lot of talk on Capitol Hill recently about introducing legislation that would increase the cost of obtaining an H-1B visa for US companies, an unpopular move causing a rush to obtain visas before costs go up. Many foreign officials are also unhappy with this new proposed legislation.
Indian officials, for example, have threatened to retaliate economically against US interests if the proposed legislation becomes law. Large portions of H-1B visas are issued to foreign workers from South and East Asia. According to USCIS figures, approximately 58 percent of all H-1B petitions approved in fiscal year 2011 were for workers born in India.
The H-1B visa is very popular with both US businesses and foreign nationals because it is available for six years in three-year increments and can be obtained for a longer period under certain circumstances. Further, this visa is one of the few “dual intent” visas. That is, it facilitates the process by which you can obtain a green card, without interference. When the foreign nationals pick up their visa at the US Embassy or Consulate, for example, they can tell the US officer that they intend to emigrate to the US, and this will not trigger a denial of their visa, unlike with other visas such as the B1/B2 tourist or F-1 student visas.
The H-1B visa also offers some other positive flexibility. While an employer may not "bench" a H-1B visa holder due to lack of work, an H-1B visa carries a part time employment option, unlike other visa holders such as F-1 student visa holders who are required to study full time. Therefore, a foreign national who cannot afford to, or otherwise wishes not to study full time, could study and work part time on an H-1B visa. Additionally, an employer who is only looking to fill a part-time specialized position can utilize the H-1B option.
Furthermore, if an H-1B visa holder wishes to change jobs, they must have a petition filed for them by the new employer; however, the H-1B visa holder can transfer their H-1B visa without waiting for a new visa to become available. Additionally, an H-1B visa holder is eligible to bring their immediate family members such as their spouse and children under age 21 to the US through the H-4 visa.
In order to obtain an H-1B visa, a US employer must sponsor the foreign national. A foreign national can have more than one US employer petition for their H-1B if they seek employment in multiple jobs.
The employer must be looking to fill a vacancy in a specialty occupation that normally requires a four-year bachelor's or higher degree or its equivalent. Specialty occupations have included computer professionals, graphic designers, accountants, economists, medical technologists, social workers, acupuncturists, chiropractors, dieticians, orthopedists, pharmacists, physicians, electronic specialists, engineers, mechanical engineers, chefs, fashion designers, film and video directors, general managers, librarians, technical publications writer, teachers in public primary and secondary schools, colleges or seminaries, and lawyers. The range is wide, appealing to a diverse spectrum of businesses.
The foreign national must also possess a four-year US bachelor’s or higher degree, licensure or certification in a field that is required for the specialty occupation. Equivalency in foreign education and/or in work experience can count as a substitute. In determining equivalency, USCIS generally uses the “three to one rule”; three years of work experience makes up for each year the applicant lacks in the educational requirement.
The H-1B visa comes with protections, known as the Labor Condition Application (LCA) to ensure that employing foreign nationals will not adversely affect the working conditions of other US workers, and that the foreign worker will be paid prevailing wages, among other protections. The visa thus ensures fair standards and competitiveness, helping to bolster our economy.
H-1B Visa Cap and When to Apply
Under the law there is a limit on how many H-1B visas are issued annually, calculated each fiscal year: 65,000 standard visas and another 20,000 visas for those with a US master’s or higher degree. However, higher education institutions, nonprofit research organizations, government research organizations, and certain other businesses and individuals are exempt from the numerical cap. The fiscal year starts in October, and the earliest USCIS accepts H-1B applications is six months before the start date of the fiscal year, which this year is Tuesday, April 1, 2014. It is important to take note of this date because in the past the entire quota has been known to run out on or near to the first day that USCIS starts accepting applications.
(Note: This feature is intended only as a forum for general information and discussion. Any information provided is not in the nature of legal representation and is not intended to establish any attorney-client relationship. Any information provided should not be relied upon without consulting an attorney to discuss the specific facts relevant to your situation.
Umar Akbar Ahmed, Esq.is an attorney in Washington, DC. For more information visit: www.UmarLaw.com)