It’s that time of year when employers prepare and file H-1B visa petitions on behalf of foreign workers. The H-1B visa is an employment-based, non-immigrant visa category for temporary workers. H-1B visas allow foreign workers with at least a bachelor’s degree or equivalent to work in specialty occupations for U.S. employers. They have become an essential tool for many businesses to get highly skilled and qualified workers in many different fields. In fact, many industries continue to lobby the government to raise the H-1B caps, which limit the number of H-1B visas granted each year, and thereby enable more foreign workers to work in the U.S.
In anticipation of the upcoming H-1B cap season, here are 14 things employers need to know about the visa process:
- The H-1B category only applies to workers who perform services in a specialty occupation or fashion models. A specialty occupation requires a prospective applicant to have at least a bachelor’s degree or equivalent in a field of study directly related to the job. Some examples of specialty occupations include accountants, journalists, teachers (primary, secondary or higher education), computer programmers, chiropractors, fashion designers, graphic designers, and technical writers.
- The H-1B petition may be approved for an initial period of three years. H-1B status can be extended up to an additional three years, for a total maximum of six years, with some exceptions.
- The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year (FY). An advanced degree exemption is available for the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Once that limit is reached, any petitions filed for beneficiaries with a U.S. master’s degree or higher will count against the regular cap, unless exempt for other reasons.
- H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. USCIS will start accepting H-1B petitions that are subject to the FY 2017 cap on April 1, 2016. If USCIS receives an excess of petitions during the first five business days of April, it will hold a lottery to randomly select the number of petitions required to meet the cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. There are a few exceptions.
- H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. That means these entities may file H-1B petitions on behalf of their employees at any time during the year and they are not subject to the FY cap described above.
- We expect that USCIS will receive more petitions than the H-1B cap for this year’s program, and therefore, petitions will be subject to the lottery system. It is essential that the employers plan as early as possible in order to ensure the timely filing of cap-subject H-1B petitions. Last year, USCIS received nearly 233,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.
- Only a U.S. employer may file H-1B petitions on behalf of its employees, and the employer must have an EIN number.
- The U.S. employer must engage the H-1B employee to work in the U.S. and must have an employer-employee relationship with the employee. This generally means that the employer must have the power to hire, pay, fire, and supervise the H-1B worker, and direct, review, and control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning entity may be able to establish a valid employer-employee relationship, if the petitioning entity has the right to control the beneficiary’s employment.
- The employer may offer a full-time or a part-time position to the foreign worker. Whether the proffered position is a full-time or a part-time position should not be a determinative factor in USCIS adjudication unless the foreign worker earns a wage that is below the poverty guideline.
- The employer must pay either a wage that is no less than the wage paid to similarly qualified workers or the prevailing wage, as determined by the Department of Labor, whichever is higher.
- The employer may not require the employee to pay, either directly or indirectly, any part of the legal and filing fees directly related to the filing of LCA and H-1B petitions, unless the premium processing service is requested for the employee’s personal reasons.
- The employer is liable for the reasonable cost of return transportation for the employee if the employee is dismissed prior to the completion of the approved H-1B term. This does not apply if the beneficiary voluntarily terminates his or her employment prior to the expiration of the authorized period of stay.
- The employer is prohibited from submitting multiple H-1B petitions for a single foreign worker. If the employer files more than one H-1B petition on behalf of the same foreign worker in the same fiscal year, USCIS will deny or revoke all such petitions.
- The employer must claim the foreign worker as an employee for tax purposes (Form W-2). An independent contractor who works on commission, and whose work and work schedule is not controlled by the employer is not considered an employee in H-1B context.
In our next post, we will discuss the most common problems employers have with the H-1B visa process.
If you are an employer interested in applying for an H-1B visa, contact Pollack, Pollack, Isaac & DeCicco LLP for additional information.