Understanding H1B Visas: Frequently Asked Questions

Published: Jul 16, 2008

By Wendy Lalli -- During the last decade U.S. based companies have seen an unfortunate drop in qualified American college graduates for positions in the fields of science and technology. At the same time, foreign nationals have been pursuing higher education here in ever greater numbers.

According to a recent study completed by the National Science Foundation, in 2005 foreign students accounted for 59 percent of all doctoral degrees and 43 per cent of all higher-education degrees in engineering and science earned at American colleges and universities.

Over the last few years the H1B visa program has enabled U.S. companies to recruit a limited number of new employees from this significant pool of foreign student graduates. Currently there is a tight cap on these visas with only 65,000 available for foreign candidates with at least a bachelor’s degree. And another 20,000 are available for those positions requiring a Master’s Degree. The demand for these visas is obviously great. In fact, this year 163,000 applications were submitted for these 85,000 visas in just one day!

From all accounts, the demand in 2009 will be even greater. To help you decide if hiring through the H1B program might be a recruitment option for you, we’re offering some Frequently Asked Questions on the subject in the hope that it will make this complex topic a little easier to understand.

What is a H1B Visa?

The H1B Visa program allows U.S. employers to hire foreigners with sophisticated skill sets and education to work in this country for up to six years. Especially designed for employers and employees in particular industries demanding special education and knowledge, H1B visas are granted on the assumption that the foreign visitor: (1) plans to stay in the country for a relatively short period of time, (2) has specific skills needed by a sponsoring employer, and (3) has earned a BA degree or higher in a particular field including but not limited to engineering, mathematics, physical sciences, information technology, and medicine.

Who qualifies for an H1B Visa?

Individuals can NOT obtain an H1B visa on their own. But any employer with a U.S taxpayer identification number can apply for visas on behalf of a foreign worker as an 'H1B sponsor'.

How long is H1B Visa good for?

An employee can maintain his or her H1B status for a maximum continuous period of six years. Once this visa expires, they must leave and remain outside the U.S. for one year before returning and being considered for employment under the auspices of H1B program again. (However, in certain circumstances, foreign workers with labor certification applications or immigrant visa petitions in process may be able to extend their H1B status in one year increments beyond the normal six-year limitation.)

During this six year period, the employee may also apply for a Green Card. If the application process is completed by the time the H1B visa expires, they will be able to stay in this country as an immigrant worker and even pursue citizenship.

How are recipients of the Visas determined?

Because there are so many applicants for so few visas a lottery system was devised to make the selection process as fair as possible. So this year, 20,000 visa applications for positions requiring a Master’s degree or better were randomly chosen by computer. Those whose applications weren’t chosen were put back into the general lottery, giving them a second chance to selected as one of the 65,000 H1B visa candidates with at least a bachelor’s degree.

How does an employer file for the program?

April 1 is the first day the United States Citizen and Immigration Services (USCIS) accepts H1B petitions for the federal government’s fiscal year starting on October 1. This year the applications outnumbered the available Visas by over two to one. So preparing early is mandatory.

You should begin by identifying the requirements of the position(s) your company needs to fill and determining your preferred candidates. Then complete all the necessary H1B forms and support documentation for your application. To increase your chances of success in the drawing, consider submitting more than one applicant for each position. While you can only enter one visa application per applicant, you can submit multiple applications (each representing an appropriate candidate) for every open position.

Before submitting an H1B application, the employer is required to file a Labor Condition Attestation or LCA (basically a job description that includes salary and hours) with the Department of Labor (DOL). The employer must also post copies of the LCA in two different sites in their work place for at least ten days and make all records related to the LCA filing publicly accessible.

What fees are involved?

The base fee for filing is $320. Then, to comply with the American Competitiveness and Workforce Improvement Act of 1998, an additional $750 is charged to employers with up to 25 full time employees (unless exempt) and $1,500 for employers with 26 employees or more (unless exempt). A $500 fraud fee is also charged for each H1B petition filed on behalf of each beneficiary by a petitioner plus an additional $1,000 for employers seeking Premium Processing Service. If the application doesn’t go through, fees are refundable.

How does H1B Visa apply to hiring foreign workers directly after graduation?

If you hire a foreign student upon graduation, you can start the application process for an H1B visa during their optional practical training (OPT) period. (By the way, the OPT may now be extended from a year to 29 months for qualified F-1 non-immigrant students.) Once the H1B visa is granted, he or she will be able to work in this country for a maximum of six years but ONLY for you as their sponsoring employer. In order to increase the benefit you’ll get from hiring such an employee, try to proactively recruit these students as part time employees or interns even before they actually graduate and begin their OPT. That way you can get a better idea if you want to invest the time, trouble, and money in hiring them on as H1B visa employees.

Can H1B Visa hires go on vacation?

As long as the employer-employee relationship is intact, foreign nationals working for you can take sick leave, vacations in or out of the country, and enjoy all the same benefits the other employees do.

What happens if the situation changes for the company or the employee?

Whatever the company’s status – if they are sold, merge with another company, etc., – the H1B Visa will be in effect as long as the employee is doing the same kind of work they were hired to do when the visa was applied for. If the employee decides to take a job with a different company, their new employer must file a new I-129 petition before they can make the change and be considered legally employed.

For more information on this topic we suggest you visit the Web site of the U.S. Citizenship and Immigration Services at www.uscis.gov and the U.S. Department of Labor at www.foreignlaborcert.doleta.gov.

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