H-1B basics: hiring foreign nationals

If your company is recruiting professional employees and you are considering employing a foreign national, H-1B visas are available this fiscal year to hire those employees.The H-1B visa allows professional people working in specialty occupations to work for businesses in the United States. Each year on Oct. 1, 65,000 such visas are made available for persons hired for professional positions in a specialty occupation requiring a minimum of a bachelor’s degree. An additional 20,000 visas are available for professional positions for foreign nationals who obtained a master’s Degree from a U.S. university.Of the 65,000 visas, 1,400 are especially allotted for persons from Chile under the United States-Chile Free Trade Agreement and another 5,400 are allotted for persons from Singapore under the United States-Singapore Free Trade Agreement.Thus, even if there is a heavy usage of H-1B visa, you are generally able to hire persons from Chile or Singapore from the visa set-aside.In the late 1990s and up to about 2006, the U.S. Citizenship and Immigration Service ran out of H-1B visas before the fiscal year even began. For many years, the agency had to hold a visa lottery, all of the H-1B visas for the next fiscal year were used within the first two days of filing.Last year, H-1B visas were available until Dec. 21. So far this fiscal year — fiscal year 2011, which begins Oct. 1 — 22,000 visas have been issued against the 65,000 cap and 9,400 against the 20,000 cap. Therefore, many new H-1B visas are still available.If a foreign national already has an H-1B visa, he or she is generally not subject to the visa cap. A company can transfer the H-1B visa and, for the most part, not be concerned with the cap.When considering hiring a professional in the H-1B visa category, the position must be in a specialty occupation, which is defined as an occupation that requires “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent).”“Or its equivalent” means that if you have found a person with experience who does not have a degree, that person may still be qualified for an H-1B position based on experience. You do not have to automatically disqualify a candidate based solely on the lack of a degree.

Visa requirements

The process for obtaining an H-1B visa begins with the U.S. Department of Labor. Employers are required to submit an approved labor condition application as a prerequisite to filing an H-1B petition. The labor condition application attests that the company will pay the foreign national either the prevailing wage or actual wage for the position offered, whichever is higher. This is to ensure that companies do not hire foreign workers in order to put higher-paid U.S. workers out of business.The company also attests that it will provide working conditions that will not adversely affect the working conditions of similarly situated workers; that on the day the labor condition application is filed there is no strike, lockout or work stoppage; and that notice has been given to the other employees or the company bargaining representative, if there is one.It is very important that the foreign national worker be paid either the prevailing wage or the actual wage, whichever is higher. The prevailing wage can be made either by requesting the Labor Department review the job duties and requirements and then give a prevailing wage, or a company is allowed to use the agency’s online wage surveys to find a prevailing wage. The actual wage is determined by an examination all similarly situated employees and a determination of how much the company actually pays those individuals. The company must pay the higher of the two numbers.“Working conditions” refers to hours, shifts, vacation periods, and fringe benefits. The company must be able to show that the working conditions of the H-1B employee are similar to those in like business establishments in the area.The H-1B visa petition must be prepared and submitted to the Citizenship and Immigration Service with documents supporting each requirement of the law. The filing also must include the approved labor condition application.If approved, the visa will allow a professional worker to work in the United States for up to six years. The maximum period of time that can be requested for an H-1B visa is three years. If the employer seeks to retain the H-1B worker for longer than three years, then an extension petition must be filed for the remaining period of time.Many people ask if a company is required to publish a job advertisement for an H-1B position prior to filing the H-1B visa petition. The answer is no. The requirement to publish a job advertisement for the position would arise only if the company subsequently determines that it would like to hire the individual permanently. (A company also may file for a part time H-1B worker, if that is what is required.)It is also important that both the company and the foreign national employee understand their responsibilities and obligations under the H-1B regulations.

Among the most important are that the H-1B employee is only allowed to work for the employer that obtained the H-1B visa and the employer must pay the prevailing wage or actual wage, whichever is higher.Mona T. Movafaghi, an immigration attorney with the law firm of Wiggin & Nourie, can be reached at 603-629-4523 ormmovafaghi@wiggin-nourie.com.

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