US Employers are able to employ foreign nationals provided the employer sponsors the employee for an appropriate visa. There are over 10 categories of visas that may apply, so each employment need should be carefully evaluated to select the most appropriate visa.
The most common types of visas, especially in the hi-tech industry, tend to be the H-1B visa, or the L-1 visa. The L-1 visa may be a preferred option if the employer is a multi-national organization and both the employer and employee meet certain criteria. In this section, we specifically discuss the more common H-1B visa.
As a prospective sponsor, the Employer should be aware that the H-1B is designed to ensure that American workers are not displaced through the employment of Foreign Nationals. To this end, the Employer must show that the foreign national will not be paid less than what would be paid to an American for that same job in that location. Additionally, the employer will need to post the position being filled, along with the salary being paid. This can be viewed by all employees of the corporation.
The H-1B visa is subject to a maximum number issued each year. It is therefore quite possible that the Employer may not be able to sponsor a H-1B employee during the year if the cap has been reached, and will instead have to wait for the next years allotment of visas.
The H-1B is available for positions that require a bachelors degree (or its equivalent) as a minimum to enter that occupation and the employer needs to demonstrate that this position meets that requirement. This is normally not an issue for certain defined fields, such as architecture, engineering, mathematics and physical sciences. Please contact our office for information on additional fields and educational requirements.
General steps for obtaining a H-1B visa:
The Employer must determine the prevailing wage for the position being filled. This is the prevailing wage as determined by the Department of Labor, not what the Employer thinks is the prevailing wage.
An LCA (Labor Condition Application) is filed, which, in part, certifies that the alien will be paid the prevailing wage, employing the alien will not adversely affect the working condition of current employees and that the employer has notified current employees of the filing of the LCA.
The petition for the visa is then filed.
One the petition is approved, the alien may have their visa processed in the local consulate of their home country. The alien will receive a H-1B visa, allowing entry into the United States with work authorization.
Frequently Asked Questions:
How many H-1B visa's are issued per year?
The current cap is set at 65,000 per year. These numbers fill up fast and inevitably lead to waiting times. Prospective employers are urged to file as soon as possible. Note that an additional 20,000 may be available for foreign nationals that have a Masters degree.
Can we expedite processing?
The USCIS offers an expedited option. There is a extra processing fee of $1,225 (government fee, not attorney fee). This reduces the processing time to 15 days. Note however that this is still subject to the numerical visa cap.
Does the employee need to have a US Bachelors degree?
The employee needs the equivalent of a US Bachelors degree. This means that it can be a foreign degree provided that a credential evaluation service evaluates it to the same as a US degree. In addition, equivalency can be made up from significant work experience, specialized training and licensing.