by Elaine Young
Employers wanting to hire foreign workers through the H-1B visa program need to be ready to file petitions with U.S. Citizenship and Immigration Services (USCIS) on April 1. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields. The first possible start date for most H-1B employees is the first day of the federal fiscal year, October 1. Therefore, petitions submitted on April 1, 2013, will apply to the 2014 federal fiscal year, which begins October 1, 2013.
Here’s an overview of what to consider before April 1 and some information about how the H-1B process may change in the future.
H-1B cap. Congress has set a cap of 65,000 H-1B visas per year, but the first 20,000 foreign nationals who have earned a master’s degree or higher from an American university are exempt from the cap under the “advanced degree” exemption. Other exemptions also are allowed, including workers who (1) qualify under the U.S. free-trade agreements with Singapore and Chile, (2) work at certain nonprofit research organizations and institutions of higher education, or (3) have worked under H-1B status within the past six years. For those not exempt from the cap, it is important to file an H-1B petition on April 1 or as soon as possible afterward. The cap for the 2013 federal fiscal year was reached on June 11, 2012.
H-1B defined. H-1B is a temporary visa, not a green card. It’s valid for three years and can be extended for three more years. Employees who need to stay more than six years generally need to apply for a green card. H-1B visas also are employer-specific, so a foreign national can work only for the employer that sponsors her.
Who qualifies? H-1B immigration status is intended for foreign nationals working for a U.S. employer in a “specialty occupation,” defined as one in which (1) a bachelor’s degree or higher normally is a minimum job requirement for the petitioning employer or the industry as a whole or (2) the job is complex or unique enough that it can be performed only by an individual with a degree. Employers can sponsor individuals only if they will have a true employer-employee relationship. USCIS has sharply increased its scrutiny of the employer-employee relationship in the past five years, especially for petitioners in the IT consulting industry.
Wages and hours. Employers must pay H-1B workers at least the prevailing wage for the occupation in the intended geographic area of employment as determined by the U.S. Department of Labor (DOL). Companies can file petitions for part-time or full-time work, and employees can hold two or more concurrent H-1B petitions for different employers.
Basic steps. Before filing an H-1B petition, the employer must file a labor condition application (LCA) with the DOL. Certification usually takes seven days. If the petitioner hasn’t filed an H-1B petition before, the LCA system may prompt the employer to submit evidence of its federal employer identification number (FEIN). The DOL’s vetting of the FEIN can add one week or more to the process.
The future. Changes to the cap may be on the way for future years. A bipartisan group of senators has introduced legislation that if passed would increase the number of H-1B visas from 65,000 to 115,000 annually. But for this year, the cap is 65,000.
Elaine Young is a member of the international section of the Kirton McConkie law firm in Salt Lake City, Utah. She is a contributor to Utah Employment Law Letter. She can be reached at eyoung@kmclaw.com.