Introduction to H-1B Visa Overview Provide overview of visa types Explain basics of H-1B visa Discuss role of Recruiters, HR and legal counsel involved Potential internal processes Complexities of H1B
Visa Types: A foreign national mustbe in valid “status” to be in the U.S. H-1B (specialty worker) B-1 (business) L-1 (intracompany transfer) R-1 (religious Worker) P-1 (sports and entertainment) B-2 (visitor) F-1 (student) Legal Permanent Resident aka “Green Card”
H-1B Visa Description A non-immigrant visa that allows a non- immigrant to be employed in the U.S. for MAX of 6 years in a “specialty occupation” Note – alien may work for multiple employers during 6 years; therefore you must ask regarding prior H-1B periods prior to employment (e.g. year 5)
H-1B Visa Basic Requirements • Employee must have at least a relevant Bachelor’s degree or equivalent, or higher degree • Position must be a “specialty occupation” • Employer must pay at least the prevailing wage
H-1B Advantages Allows long-term work in U.S. Duration: • Up to 3 years initially • Renewable for 3 more years, for 6 year maximum • Eligible for another 6 years after 1 year stay outside U.S. Ample time to work toward green card (PR) No advertising or test of the U.S. labor market required H-1B portability (transfers)
H-1B Standards Paperwork requirements - must be done correctly to avoid U.S. Citizenship & Immigration Service (USCIS) or Department of Labor (DOL) violations Cost – 100% borne by hiring department, never by the alien (per DOL regulations) Minimum (prevailing) wage
H-1B Standards (continued) Annual limit to number of new H1B’s (as opposed to transfers from another company), call the Cap. Begin applying only by April 1, cannot begin work until October 1. Compensation cash only
Roles: Alien/Dept./Agencies Hiring Department – hiring process Employee – provide honest & complete info Human Resources – appointing authority, liaison, I-9, Public Inspection File Legal Counsel – processes the paperwork (United Way) with USCIS USCIS – approval/rejection of petition. F/k/a INS, it is a sub-agency of DHS
Steps for Obtaining H-1B Visas • Recruiter, HR, and Legal discuss potential employee and issues/eligibility for H1B process (e.g. occupation, wage, other terms). • Legal might obtain Prevailing Wage Determination prior to offer. • Foreign national employee given an offer of employment. • Legal/HR submit questionnaire to employee. • Legal files ETA 9035 (LCA) with DOL (takes up to 7 bus. days) • Once all documents and information are in order, legal prepares H1B application packet. • Legal completes processing, sends back to HR for appointing authority signature. • Legal files application with USCIS for processing. • Notice of Receipt sent from USCIS to Legal (forwards to HR, Recruiter and Employee if requested) • Notice of Approval from USCIS to Legal (forwards to HR, Hiring Department and Employee if requested)
H-1B Processing Time forApproval Normal processing: Typically 60-90 days Premium Processing (common): 1-15 days
Potential Internal H 1B Process Step 1 Recruiter contacts HR when employee identified for hire, stating need for a visa. The Recruiter and HR consult with Legal regarding determination of appropriate immigration classification for the individual/position and timing of process
Potential Internal H 1B Process Step 2 HR and/or Legal provide Recruiter with information for offer letter
Potential Internal H 1B Process Step 3 Employee and/or HR/Recruiter assemble and submit ALL REQUIRED forms and documents on checklist.
Potential Internal H 1B Process Step 4 • Legal receives all documents; • Legal determines prevailing wage or performs salary compensation survey comparison; • Legal obtains certified LCA from the DOL;
H 1B Process Yes Prevailing wage No Step 5 determined Legal informs Hiring DepartmentLegal informs Recruiter that wage is that wage is too low — they must sufficient raise wage Legal prepares H-1B for filing OR Files an appeal, if possible OR company does not hire employee STOP!
H 1B Process Step 6 Legal prepares and submits application packet and submits to U.S.C.I.S.
H 1B Process Step 7 USCIS issues receipt notice, followed by notice of action, Legal informs HR/Recruiter of decision
H 1B Process No Yes Step 8 Employee in US?Approval sent to employee abroad.Employee obtains visa (stamp) approval to enter U.S. (unpredictable timing here) Employee eligible to work until expiration or renewal of H-1B STOP! Employee eligible to work until expiration or renewal of H-1B STOP!
Examples of Potential Complexities Criminal history FN has been out of status in past Bringing spouse, kids Off-site placement (frequency, location) Client doesn’t approve Educational equivalency Years of experience Country of Origin (different rules) Lack of documentation (birth, marriage) CAN RESULT IN Request for Evidence (RFE)
IMPORTANT POINTS Almost every H1B applicant is different, requiring different responses to nuances in the law. Better to do it right, than fast. Most rejections result from incomplete, inconsistent, or inaccurate applications. Information and documentation from employee must be complete, consistent, and accurate! IMMIGRATION IS COMPLICATED AND NUANCED AT EVERY STEP: There are always conditions and requirements.
IMPORTANT POINTS (continued) Foreign workers are part of an overrall business strategy involving recruitment, HR, operations, legal, and financial issues. A “Public Access File” must be kept. Non-compliance with federal authorities can be disastrous, so business process improvements may be necessary. Don’t act until you are sure of the answer. There are no dumb questions: ASK, ASK, ASK. If you hate your lawyer, you’re doing it right.