Successful start-ups and small companies develop an in-depth strategic plan to make their business and company grow. In the process of making the business plan, people who own a business think of objectives, timelines, and action plans, but eventually, finding the right employees are essential to achieve goals set up in the business plan.
In the U.S., there are already plenty of specialized workers in different fields of expertise, but sometimes the right people for the business with highly specialized knowledge may already be taken and not interested in other employment opportunities. This may be challenging, especially for smaller companies in need for specialty occupation positions, since high-skilled workers are usually unwilling to relocate.
Fortunately, nowadays, trends and globalization open the door for employment with people from all around the globe, and it’s not rare that the U.S. employer finds the right fit across the border and employ a foreign national.
While this practice is common for large companies, smaller companies are still getting used to it.
Bringing qualified foreign employees into the U.S. for specialty occupation positions most commonly requires an H-1B visa. This visa requires theoretical and practical application of specialized knowledge and a bachelor’s or master’s degree in the related specialty.
However, the requirements are the same for all other employers and small businesses. Each applicant must demonstrate:
- The financial viability
- Ability to compensate the foreign employee during their stay.
Besides, more documentation is required, so you might think of getting extra help from an immigration attorney who will support you navigate the process with a higher chance of success.
What Is An H-1B Visa?
H-1B visa is a nonimmigrant visa created by the United States Citizenship and Immigration Services (USCIS) to allow U.S. companies to employ qualified foreign workers in specialty occupation positions.
Qualified companies that want to hire non-citizens need to sponsor their petition. The foreign workers must have a bachelor’s degree or equivalent experience in the proposed position from the job offer. Once the H-1B petition is approved, the foreign worker may remain in the U.S. for three years. Afterwards, the sponsoring company may reapply for an additional three years for six years.
What makes this visa so popular and hard to get is the number of available H-1B visas per fiscal year that USCIS currently maintains to 65,000 H-1B visas. There is an additional 20,000 more H-1B visas, but this cap is reserved for higher degree holders with Masters degrees or higher education.
Due to the popularity of this visa, each year the number of applications annually exceeds the quotas. Because of that, the USCIS has created a H-1B lottery.
How to Get The H-1B Visa?
To get an H-1B visa, you must have a full- or part-time job offer from a U.S. employer. As we mentioned above, the job position that is open for you has to be a specialty position that requires a bachelor’s degree or equivalent experience.
In the annual lottery for the H-1B visa, a total of 85,000 petitions are randomly selected to go on to further processing. If your petition hasn’t been selected, it will be returned along with the fee, and you will wait until the following year to file again.
If your cap-subject petition is selected in the lottery, it will go on to processing. USCIS will notify you whether they approved it, denied it, or rejected it. If you get the approval, you will be able to start working from October 1st of the year that the petition was filed.
H-1B Visa Requirements
To sponsor a foreign high-skilled employee for an H-1B visa, the business must meet several requirements and steps during the application process.
H-1B visa can be granted to:
- A “specialty occupation” that normally requires a degree or equivalent experience, note that there is no a comprehensive list of the occupation
- A research and development project administered by the Department of Defense; or
- Work as a fashion model of distinguished merit and ability.
Requirements of the Proposed Position:
- The position must require knowledge obtained through a specific course of study at an institution of higher education or specialized training.
- The employer can’t displace a U.S. worker with the H-1B employee within 90 days.
- The position must pay the “prevailing wage.”
Requirements for Employers:
- Having the financial resources to pay the employee
- Not having an intention to displace U.S. workers in a similar job within 90 days of applying for H-1B visas
- The H-1B visa employee won’t be placed at another worksite
Requirements for The Employee:
- Having at least a bachelor’s degree or equivalent.
- Possessing the specialized education and training required for the position.
- Having an offer to work in the job.
Cap-Exempt Cases
Also, there is an option to bypass the lottery and file a cap-exempt petition and go straight to processing if you:
- Have a cap-exempt employer (i.e., institute of higher education, nonprofit, or governmental research center)
- File to extend your H-1B visa status
- File to transfer your H-1B status to another employer
However, you will have to file the petition as soon as the lottery window opens on the first business day in April.
Your I-129 form must be filed with a Labor Condition Application (LCA). Also, you should provide any necessary supporting evidence and pay the required fees.
It is the responsibility of your employer to file these items and fees on your behalf. Moreover, it is not legal to have the beneficiary pay or file the petition on their own.
Step By Step to The H-1B Visa
The U.S. Citizenship and Immigration Services (USCIS) requires employers to electronically register and pay a $10 fee before petitioning for employee sponsorship. So, the first step for the U.S. company in the H-1B process is creating an online account with USCIS.
There is a 3-step process.
Step 1: Representing The Labor Condition Application (LCA)
The process starts with the sponsoring employer presenting a complete and accurate LCA Form 9035 to the Department of Labor (DOL). When DOL approves the application, you may proceed by applying to the USCIS.
Also, your employer must inform current employees within the company of the intent to hire a foreign worker. This should be stated in a public access notice. In the LCA, it is noted that you cannot be paid the prevailing wage at a rate not less than existing employees.
Step 2: Filing The Form I-129
The sponsoring employer has to file a completed Form I-129, Petition for a Nonimmigrant Worker, with the USCIS and include the certified Department of Labor approval of the LCA.
Step 3: Applying at the U.S. embassy or consulate
As a prospective foreign employee, you now have to apply your petition to the Department of State at the appropriate U.S. embassy or consulate in your home country. This is the opportunity for you to prove your qualifications for the H-1B visa. Also, you will apply to the U.S. Customs and Border Protection (CBP) for admission under the H-1B visa.
Challenges For Small Companies
Although H-1B is a highly popular visa category due to low requirements, it can be challenging for small businesses.
First of all, many small businesses and startups cannot provide the resources and funds necessary to complete the H-1B hiring process. Since costs can be hefty for some of them, many have routinely given up hiring H-1B workers because there is a high risk that USCIS will reject their petition.
Sponsoring foreign employees for U.S. work visas can be costly and time-consuming – luxuries that small businesses may not have.
The Labor Condition Application LCA
The employer has to obtain the Labor Condition Application and make four attestations:
- There are no strikes or lockouts within the company at the moment of application (essentially that they are not replacing striking workers)
- Hiring a foreign employee will not negatively impact the employer’s current workforce.
- The employer notified current employees about the attempt to hire a foreign worker.
- The employer will pay the prevailing wage to the prospective person to get the employment as a minimum, determined by the DOL based on the position and the geographic location of intended employment. This salary has to be equivalent to the current employees in the same position.
The LCA intends to protect the current U.S. workers in the first place, but it can present an obstacle for small companies. Particularly, the final attestation can prevent small businesses from giving up on hiring an international person.
To prove that the employer is capable of and prepared to pay the prevailing wage to the beneficiary, the sponsor needs to demonstrate it through bank statements and tax documents, which can be challenging for small companies and startups.
Demonstrating Stability
The prospective employer has to convince the USCIS must that the company has the financial stability to maintain the employee during employment.
This can be proven by show cashing flow, current contracts, balance sheets, income statements, tax returns, and other information from your bank account.
The H-1B Visa Costs
Many small businesses cannot afford the cost of hiring an H-1B worker.
A small company has the following fees to pay through the process:
- $460 filing fee for the I-129 form
- $750 for ACWIA training fee for companies with 25 employees and less
- $500 for Fraud prevention and detection fee
Also, in certain circumstances, there are other fees:
- $4,000 for Public Law fee, applicable to companies with more than 50 employees
- $1,440 for the premium processing fee, an optional service provided by USCIS.
If USCIS does not approve your petition (for example, if you attempted to petition and it was determined that you could not pay the prevailing wage), then all of those fees will not be refundable. This can be a hefty burden for small companies, so considering hiring an immigration attorney can be a wise investment from the very first beginning.
Time Sensitive Process
Once the employers submit all documentation required and pay the required fees, they should wait to hear back from the USCIS about whether they get the approval. This waiting period typically takes three to four months, which may be too much time for small businesses.
There is an option to speed up the process and purchase expedited processing. If you choose to take the Premium Processing service, USCIS will process your application within 15 calendar days.
Keep in mind that U.S. Citizenship and Immigration Services (USCIS) meets all of the caps for H-1B visas within the first five days of opening the application for petitions in 2019. So it is essential to keep track of the annual H-1B timeline.
Difference Between H-1B and other non-immigrant visa programs
Several different nonimmigrant visa programs can allow U.S. companies to employ foreign nationals, but the H1-B visa program provides the most streamlined process. With H1B visa, the foreign employee can gain permanent resident status through a concept known as “dual intent.”
“Dual intent” means that the foreign national maintains their H1-B visa to stay permanently in the U.S. Typically, an employee can work for an employer on an H1-B visa for three to six years, according to American Competitiveness in the Twenty First Century Act of 2000 AC21. After this period expires, the foreign workers have to leave the U.S. for a year before re-applying for the second time for an H1-B visa. However, if the U.S. employer wants to employ the foreign nationals permanently, they can extend their visa until the employee can receive a green card and become a permanent resident.
How an Immigration Law Firm Can Help You?
On your immigration journey, no matter whether you are an employer who sponsors a foreign employee, or you are a visa seeker, it is important to have all needed information and guidelines from the very first beginning of the process so that you don’t make any mistakes that can cost you loosing the opportunity to grow professionally. If you need help to get the green card and lawful permanent residence
The process of applying for the H1B visa can be challenging especially for employers that are the first time applicants. Hiring an immigration attorney can bring you more benefits than just getting the visa, but more importantly uncover the winning strategy.
The Herman Legal Group has over 25 years of experience working with USCIS and helping business owners and foreigners to obtain a desired visa. Our friendly and professional team may want to help you go through H1B visa process by analyzing your case, identifying the available options, and helping you decide the safest, most cost-effective, and quickest route to success.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170 or booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
