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HIRING A FOREIGN WORKER REQUIRES MUCH MORE THAN A HANDSHAKE: WHAT EMPLOYERS NEED TO KNOW ABOUT HIRING PROSPECTIVE H-1B EMPLOYEES

By Pankaj Malik, Malik & Associates, P.C.

The H-1B visa permits U.S. employers to temporarily hire foreign workers in specialized occupations. The visa allows for foreign employees to reside in the U.S. and hold jobs in their specialized fields, so long as they meet specific qualifications. Acquiring the H-1B visa can be a complicated process. Therefore, it is important for employees and employers to be well-informed of the necessary procedures.

Qualifying for H-1B Visa
For a job to qualify as a specialty, it must meet at least one of the following criteria:

  1. The job must require a bachelor's degree or higher, or its equivalent.
  2. The degree requirement is common to the industry or the job is difficult enough that a degree is necessary for acceptable performance.
  3. The employer normally requires a degree, or its equivalent, for the position being offered.

Prospective employees must meet one of the following three criteria in order to accept a job offer:

  1. He/she must have obtained a U.S. bachelor's degree, or higher, in the specific area of expertise from an accredited college or university.
  2. He/she must have obtained a foreign degree that is equivalent to a U.S. bachelor's degree, or higher, in the specific area of expertise.
  3. He/she must have an unrestricted state license, registration, or certification that authorizes full practice of the specialty in the state of which he/she will be employed.

Limits on H-1B Visas
The H-1B visa has a fiscal year cap of 65,000 visas. The first 20,000 petitions entered for workers with a U.S. master's degree or higher are exempt from the annual cap. Employers who are petitioning from an institution of higher education, or an affiliate, are exempt, as well as employers of a nonprofit organization, or a government research organization.

How to Obtain an H-1B Visa
Obtaining the H-1B visa requires the completion of a number of important steps. The first steps are to be completed by the employer:

  1. The employer must file a Labor Condition Application (LCA) with the Secretary of Labor. This will certify that the worker will be "paid at least the actual or prevailing wage, working conditions will have no adverse effect on U.S workers, no strike or lockout is in progress, and the employer has notified the bargaining representative if the job is unionized, or has posted a notice that an LCA was filed."
  2. The employer must submit evidence of the worker's educational background. This may be in the form of a final transcript, or a letter from the Registrar confirming that the worker fulfilled all necessary requirements.
  3. The employer submits the Form I-129, Petition for a Non-Immigrant Worker.

Once the petition is approved, the worker proceeds to the next steps:

  1. If the worker resides outside the U.S. at the time of application, he/she must complete the non-immigrant visa process. When this process is completed, he/she will enter the country as an H-1B employee and begin working.
  2. If the worker is already in the U.S., he/she can start working as soon as the petition is approved.

H-1B Visa Updates
As of January 8, 2010, the USCIS issued a mandatory employer-employee relationship assessment during the time in which the H-1B petition is being evaluated. The assessment ensures that a suitable employer-employee relationship will exist for the duration of the H-1B worker's employment. The assessment shows that the employer demonstrates sufficient control over what, where, when, and how the employee will be managed. Without substantial evidence of a qualifying employer-employee relationship the H-1B petition will be denied.

Fees for H-1B Visas
Fees for obtaining the H-1B visa depend on which petition the employer is submitting. The information submitted on one section of Form I-129 determines the fees. This section provides employer information, such as whether or not he/she is an H-1B dependent employer, and whether or not the petitioner employs 50 or more individuals in the United States. This section also provides information about the worker's level of education, ranging from no diploma to doctorate degree. There are a number of fee exemption determinants. Without exemption, an additional American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee of $1,500 or $750 must be paid. More fees that may apply are the $325 base filing fee, the $500 Fraud Prevention and Detection fee, a $2000 fee for employers who hire 50 or more employees in the U.S and 50% of those employees are H-1B status, and a Premium Processing Service fee for $1,225.

Other Options
If wages, annual caps, or specialty criteria are too difficult to meet there are numerous alternatives to the H-1B visa. One option is the J-1 classification, the Exchange Visitor Program. Some examples of exchange visitors are professors, students, teachers, research assistants, and camp counselors. Those who classify as J-1 non-immigrants are sponsored by an exchange program that is appointed by the U.S Department of State.

Another option is the L-1 visa. This visa is for employees who are being transferred from another country into the U.S and who qualify as an executive or manager, L-1A, or have specialized skills, L-1B. L-1A workers can stay in the country for a maximum of 7 years. L-1B workers can stay for a maximum of 5 years.

A third alternative to the H-1B visa is the O-1 visa program. This visa is for workers with extraordinary ability in the arts, science, education, business, or athletics. Extraordinary abilities constitute as a high level of accomplishment and distinction in the specific field.
A final alternative is the E visa. This visa program is for employment-based immigrants who qualify as treaty traders. The purpose of this job is to travel between the U.S and the country in which the treaty trader is a citizen, and trade goods, services, and/or technology.

About Malik & Associates
Malik & Associates, P.C., has broad and longstanding experience in a wide range of legal services for individuals and businesses in Nassau County, Suffolk County and throughout the State of New York. Founded in 1995 by Pankaj Malik, the firm is poised to help clients resolve their issues and meet their goals with effective legal service and dedicated personal attention. For more information, visit www.malikimmigrationlaw.com

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