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Hiring a Foreign National on a H-1B Visa

In recent years, the United States has seen an influx of foreign born talent seeking employment opportunities. Many of these individuals come bearing skills that are sought after by U.S. companies but, due to their foreign national status, these individuals have to seek alternative processes to obtain work authorization. An employer may be able to employ a foreign national for a short period of time in the United States with the implementation of non-immigrant visas. We will specifically discuss the H-1B Visa throughout this article.

What Is An H-1B Visa?

Generally, in the United States, a foreign national is a person who is not a naturalized citizen of the United States and who is a citizen of a foreign country. In order for a foreign national to legally gain work authorization in the United States on a temporary basis they must find employment through an employer who will petition on their behalf to USCIS, This most often takes the form of an application for a non-immigrant visa, the most common visa that is applied for is the H-1B visa. Every year, the United States allows for up to 65,000 H-1B applications for new beneficiaries seeking temporary employment in America under what is known as the H-1B cap. In addition to the 65,000 that is already earmarked, an additional 20,000 are available to individuals who have earned a U.S. master’s degree or higher. It is still possible, however, to file for H-1B status outside of cap season, and thus be exempt from counting against the total 85,000 limit, if an individual is currently on H-1B status and is applying to extend or amend their current status in any way, shape, or form. This even includes changing from one employer to another.

An H-1B visa is a visa that applies to people who work in specialty occupations and has a number of qualifications that are required for an individual to meet in order to apply for this type of visa. These qualifications are separated into occupational requirements and personal requirements.

Occupation Requirements

  1. The occupation is one that requires both theoretical and practical application of highly specialized knowledge;
  2. A bachelor’s degree or higher in a specific specialty is a minimum requirement in the United States for entrance into the occupation; and
  3. The occupation must qualify as a specialty occupation as evidenced by the completion of one of the following criterion:
    1. Bachelor’s or higher degree or its equivalent is normally the minimum for entry into that position OR
    2. The degree requirement is common in the industry across similar parallel position in similar organizations or the job is so complex that it can only be performed by an individual with a degree OR
    3. The employer normally requires a degree or a its equivalent for the position OR
    4. The nature of the specific duties are so specialized and complex that the knowledge to be able to perform them are usually only attained by the completion of a bachelor’s or higher degree.

Personal Requirements

As far as personal requirements are concerned, an individual needs to only meet one of the following criteria to qualify to perform services in a specialty occupation.

  1. Hold a U.S. bachelors or higher required for the specialty occupation from an accredited university or college OR
  2. Hold a foreign degree that is the same equivalent to a U.S. bachelor’s or higher required by the specialty occupation from an accredit university or college OR
  3. Hold an unrestricted license, registration, or certification that authorizes the individual to practice the specialty application and to immediately begin working in the specialty in the state.

It should be noted that the requirement of a U.S. degree may also be satisfied by the individual having the education, specialized training, or some form of progressive experience that is equivalent to that of the degree. Furthermore, this is also proved by have a form of recognized expertise in the field as evidenced through the holding of progressively more responsible positions that are directly related to the specialty positon that the individual is being brought in for.

If a position that you wish to have filled by a foreign national fits the requirements as laid out by the USCIS and your potential employee also is able to satisfy the person requirements, the next step in the process is to fill out a petition for your employee.

How to File an H-1B Petition

The first step in the filing of an H-1B petition is the preparation and filing of a Labor Certification Application (“LCA”) to the DOL. The LCA outlines the details of the H-1B employment and lists things such as the occupational classification being sought, the number of nonimmigrants covered, the wage rate that is to be paid to the beneficiary, the prevailing wage of for the position in the area of intended employment, and the dates in which the employment is supposed to occur. It is important to note that the beneficiary must be paid equal to or higher than the  the prevailing wage in the area(s) of employment.. Furthermore, irrespective of the wage paid, in the event that there is more than one location, the wage to be paid must be the same amount and within the same wage level for all locations.

Once the LCA has been submitted and certified, employers may then begin the next step by preparing and filing an I-129 Petition for a Nonimmigrant Worker. Generally filed alongside of a G-28 Notice of Entry of Appearance as Attorney or Accredited Representative, the I-129 is the primary document that is used to obtain employment for nonimmigrants on a temporary basis. It consists of a number of parts with the main parts being:

  • I-129 Petition for a Nonimmigrant Worker
  • I-129 H Classification Supplement to Form I-129
  • I-129 H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement

The I-129 Petition for a Nonimmigrant Worker pertains primarily with the identifying information of the foreign national that is to be employed, the location of the assigned project as well as the duration of the validity period that the is imperative that the information be as complete as possible when submitted as a mistake or typo could result in the petition being rejected.

The I-129 H Classification Supplement to Form I-129 focuses on the classification of the beneficiary being petitioned for as well as general information concerning the duties that are to be performed and information about what the beneficiary of the petition currently does and what past experience qualifies them..

The I-129 H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement deals specifically whether an employer is exempt from paying additional fees in their application under the American Competitiveness and Workforce Improvement Act as well as whether the beneficiary of the petition will be counted against the H-1B cap. As previously stated, an individual will be counted against the H-1B cap if they are a new beneficiary. However, an individual may also be counted against the cap if they are attempting to exceed the six (6) year limit that is imposed on H-1B recipients. Thus, it is very important to understand how long your potential employee has been on H-1B status as well as if you may be required to pay additional funds with the filing of your petition.

Additionally, you will also need to provide documentation for all information requested on the forms to verify the information provided. The documentation that is necessary to be provided is as follows:

  • Educational Documents (degrees, certifications, grades, etc.)
  • Visa Documents (I-94, I-797, I-20, current passport, current visa, current EAD card, etc.)
  • Project Documents (itinerary, work contract, work order, vendor letter, end-client letter, etc.)
  • Employment Relationship Documents (employment contract, employee handbook, sample performance review forms, pay stubs, w-2, etc.)

If time is of the essence in the filing of your I-129, it is possible to expedite the processing of the petition by filing an I-907 Request for Premium Processing Service and paying the required fee of $2,500.

While this is a very general overview of the process that is involved in hiring a foreign national on H-1B, there are many potential issues that you may run into as you attempt to onboard your employee. Thus, we believe that it is important to speak to a qualified business immigration attorney to assist you in the preparation and filing of your paperwork to help reduce the chance of a denial. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Jeanetly Garcia & Avery Krushall