H-1B Season & Cap are Fast Approaching – Are You Ready? Top 10 Questions and Answers About H-1B Visas

by Scott Legal, P.C.
Contact

The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a Bachelor’s degree, and the Petitioner (the U.S. company) can employ the worker for up to six years.  This is a very popular visa because unlike many other non-immigrant visas that make applying for a green card very difficult and require foreign workers to maintain a residence in their home country, the H-1B visa permits for “dual intent.”  This dual intent allows one to apply for a green card while in the U.S. without running into problems.

The one catch of the H-1B visa is that there is a “cap” on the number of H-1B visas that are issued each year and this cap is often filled very quickly. For the fiscal year 2014, the limit is 65,000 for H-1B visas, with an additional 20,000 visas available for individuals who have earned a Master’s degree or higher from a U.S. school.  There is no way to predict when this year’s H-1B cap will be used up, but in prior years the cap was exhausted within a matter of days.  Most predict that this year the cap will be used up during the first week of April. (1 week after the first application can be filed).   This is an important date as if you miss the cut-off, you will have to wait until the following year to get an H-1B Visa.

Scott Legal Services, P.C. advises that you file your H-1B petition on April 1st so that you will increase your chances of a successful petition.  Here are the top 10 common questions asked by many of our clients.  The answers are short answers to complicated questions and should only be used as a basis for a discussion with a qualified immigration attorney.

1.  I have heard that as an employer I have to prove that I could not find any U.S. workers before I can get an H-1B Visa for a foreign worker.  What do I have to do for this?

In order to hire a foreign worker under the H-1B program an employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL).
This form has a fair amount of information about the employer and the job that the employer is recruiting for and the employer must attest that the employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed in the area of intended employment.  This attestation does not require advertising the job in a newspaper or providing documentation regarding your applicant search efforts.  This process is not that difficult and is not at all like the PERM certification process that is required for a green card.  Some employers that have had problems with the government in the past or who are “H-1B” dependent (many H-1B employees) have stricter requirements but many fall within the standard outlined above.

2.  Are there any restrictions on what an employer can pay an H-1B worker?

Yes.  There is a minimum amount an employer can pay an H-1B worker and this minimum amount is the higher of either the actual wage level paid to all other individuals with similar experience or the prevailing wage determined by the DOL for the occupation in the area of employment. 
In order to obtain the prevailing wage, employers should work with their lawyers to find out what the department of labor considers the appropriate wage for the employee.  An employer is not permitted to pay less than that wage.

3.     Can I work for myself or work Part-Time?

Generally you cannot work for yourself. While obtaining an H-1B visa while working for yourself is possible, it is very difficult and you would have to set up an entity where your board has the ability to fire you.  This is a complicated area so you should consult an attorney if you want to go down this route.

You are permitted to work part-time under H-1B.

4.     Can I work for more than 1 employer?

Yes under certain conditions.  A visa in the U.S. only permits you to perform the job functions that your visa relates to.  As such, an H-1B visa from one employer will not allow you to work for another employer or perform any independent contract or other work in the U.S..  You can however get another employer to sponsor you and as such have two H-1B petitions filed on your behalf.

5.     What if I get terminated before my H-1B Visa expires?

If you lose your job you lose your status.  While many speak of a 15 day grace period to leave the country, the relevant Statutes do not talk about any grace period so technically you will be out of status immediately after your last day of employment.  (and the employer is required to notify the government that you no longer work there).  You should note that an employer is required to pay reasonable costs to get you back to your home country if you are terminated before your visa expires.

6.     If I already had an H-1B Visa and am Applying for a new one, am I subject to the cap?

If you already had an H-1B visa and you have not used up your 6 years, your new employer can apply for an H-1B visa for you in the same or similar industry without being subject to the cap.

7.     How long does the process take?

Labor certification is done prior to filing the H-1B petition and this usually takes about 2 weeks to get an answer from the department of labor.  If you file your H-1B petition on April 1, you can opt for premium processing and have an answer in 15 calendar days.  Premium processing will run you an additional $1225 but it is well worth it to keep your place in line.

8.     Can I bring my family and can they work in the U.S.?

H-1B visa holders can bring their spouse and children under 21 years of age to the U.S. under the H4 Visa category as dependents.  While the dependents are permitted to remain in the U.S., an H4 visa holder is not eligible to work in the US. They can however attend school, obtain a driver’s license and open a bank account while in the US.

9.     How much does it cost?

An H-1B visa has hefty filing fees and these fees can run over $3,000 depending on the number of employees an employer has and whether premium processing is elected.  In addition, legal fees will run you around $3,000 or more depending on the complexity of a case.

10.  Do I need a lawyer?

Yes.   Like most Immigration law, the H-1B regulations and related Labor Certification Application (LCA) are complicated and you must demonstrate to immigration officials and the department of labor that you have met all of the legal elements.  In addition, given the quota/cap, you have one “bite at the apple” as there is a good chance that if you make a mistake, the cap will be filled.

If you are considering an H-1B Visa, contact Scott Legal Services, P.C..  For more information on this and other immigration Visas click here.  You can also call us at 212-223-2964 or email us at iscott@legalservicesincorporated.com.

Also, click here for your free White Paper that summarizes the top 10 Immigration Questions and Answers.

Click Here for PDF Version

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Scott Legal, P.C. | Attorney Advertising

Written by:

Scott Legal, P.C.
Contact
more
less

Scott Legal, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.