For thousands of American employers, the H-1B visa program is the primary vehicle for bringing in professional level foreign employees.
The H-1B visa allows workers in specialty occupations – areas that normally require a college degree – to work in the U.S. for up to a total of six years. Unlike immigrant cases, the employer does not need to demonstrate that there is a shortage of qualified U.S. workers. The employer needs to simply document that the position offered is in a ’specialty’ occupation, the employee has the appropriate academic credentials for the job, and the H-1B worker is being paid, at minimum, the U.S. prevailing wage for the work being performed.
The Employer’s Responsibilities
The petitioning employers, especially those that are unfamiliar with the process, are always concerned about their responsibilities as a H-1B petitioner. Through a form filed with the U.S. Dept. of Labor, called an LCA, the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed to ensure that U.S. wages are not depressed by the hiring of foreign labor, and that foreign workers are not exploited.
Three Basic Conditions
An H-1B petition will be successful only when the following three conditions are met:
First, the employer must show it has a legitimate need for a specialty occupation worker, i.e., an individual who has attained at least the equivalent of a U.S. Bachelor’s degree in a specialized field. As a general rule, large and well-known businesses do not have much difficulty in showing they have a need for an H-1B professional. Problems can be encountered if the employer is small, or if the business was recently started. However, this can be overcome with proper evidence relating to the stability of the business and its financial soundness.
Second, the position offered must be in a “specialty occupation”. Demonstrating that a position will be performed at a professional level is quite easy with some jobs, such as lawyers, accountants, financial analysts, engineers, software professionals, and professors. With many positions, however, it is not so simple. In these situations, the application must carefully define and describe the job duties and responsibilities. If the occupation is little known, or is relatively new, extensive documentation will be required to convince the USCIS of the need for a true H-1B worker.
Third, the prospective employee must show that he/she is qualified for the position offered. To qualify as a specialty occupation, the position must require at least a bachelor’s degree or its equivalent in the field itself or in a related field. Therefore, one of the most important parts of an H-1B case is documenting the alien’s education, training, and/or experience. If the alien did not attend school in the U.S., the degree must be evaluated by a qualified credential evaluation service to ensure it is at least equal to a U.S. bachelor’s degree or higher.
If there are any additional requirements that the alien must meet to take the position offered such as a state license, documentation that these requirements are met must be also submitted.
Changing Employers and Adding Employment
Once in H-1B status, H-1B employees may apply for a change to a new employer. The application process is the same as applying for a new H-1B, except that the employee can start working for the new employer once the petition has been filed. H-1B employees may also work for more than one employer at the same time as long as a separate H-1B approval notice has been obtained for each employer. One may also work part-time (as long as the LCA, above, reflects that).
Often H-1B visa holders run into trouble with his or her visa status by failing to comply with immigration regulations when switching employers or changing the terms of his or her present employment. The most difficult problems are usually the result of changing jobs without taking consideration of immigration issues and consequences.
One should note that a H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by the USCIS. That means that each time a worker moves to a new employer, a new H-1B approval is required.
Also, there are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. If the change in employment is “material” then an amendment must be filed. So, for example, if there is a significant change in job duties or a transfer to another job location, then a new petition will probably be necessary.
Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a “successor in interest” then a new petition is normally not necessary.
Finally, H-1B is a dual intent status, which means that a visa will not be denied simply because a person has intentions to become a permanent resident. In fact, H-1B employment often leads to a permanent employment and immigration. Having said that, if problems are caused by poorly filed H-1B petition or by not complying with immigration issues, such record will be used against the future immigration cases. Thus, all issues related to the original H-1B petition and subsequent changes must be fully discussed with a qualified immigration counsel and handled properly to protect both the employer’s and employee’s present and future interests.
If you have any questions or concerns about immigration law, please contact me via email, phone or chat. Please go to our website or utilize any of the icons below.
Paul M. Heller, Esq. (Founder/Principal)
Heller Immigration Law Group – 25+ years
Telephone: 650 424-1900