1. I have heard that, as an employer, I have to prove that I could not find any U.S. workers before I can get an H-1B visa for a foreign worker. What do I have to do for this?
In order to hire a foreign worker under the H-1B program, an employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL).
This form has a fair amount of information about the employer and the job that the employer is recruiting for, and the employer must attest that the employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed in the area of intended employment. This attestation does not require advertising the job in a newspaper or providing documentation regarding your applicant search efforts. This process is not that difficult and is not at all like the PERM certification process that is required for a green card. Some employers that have had problems with the government in the past or who are “H-1B” dependent (meaning that they have many H-1B employees) have stricter requirements, but many employers fall within the standard outlined above.
2. Are there any restrictions on what an employer can pay an H-1B worker?
Yes. There is a minimum amount an employer can pay an H-1B worker. This minimum amount is the higher of either the actual wage level paid to all other individuals with similar experience or the prevailing wage determined by the DOL for the occupation in the area of employment.
In order to obtain the prevailing wage, employers should work with their lawyer to find out what the Department of Labor considers the appropriate wage for the employee to be. An employer is not permitted to pay less than that wage.
3. Can I work for myself or work part-time?
Generally you cannot work for yourself. While obtaining an H-1B visa while working for yourself is possible, it is very difficult and you would have to set up an entity where your board has the ability to fire you. This is a complicated area so you should consult an attorney if you want to go down this route.
You are permitted to work part-time on an H-1B visa.
4. Can I work for more than one employer?
Yes, under certain conditions. A visa in the U.S. only permits you to perform the job functions that your visa relates to. As such, an H-1B visa from one employer will not allow you to work for another employer or to perform any other work in the U.S. as an independent contractor. You can, however, get another employer to sponsor you and, as such, have two H-1B petitions filed on your behalf.
5. What if I am terminated before my H-1B visa expires?
If you lose your job, you lose your status. While many speak of a 15-day grace period to leave the country, the relevant statutes do not talk about any grace period. As a result, technically you will be out of status immediately after your last day of employment (and the employer is required to notify the government that you no longer work there). You should note that an employer is required to pay reasonable costs to get you back to your home country if you are terminated before your visa expires.
6. If I already had an H-1B visa and am applying for a new one, am I subject to the cap?
If you already had an H-1B visa and you have not used up your 6 years, your new employer can apply for an H-1B visa for you in the same or similar industry without being subject to the cap.
7. How long does the process take?
Labor certification is done prior to filing the H-1B petition, and it usually takes about 2 weeks to get an answer from the Department of Labor. If you file your H-1B petition on April 1, you can opt for premium processing and have an answer in 15 calendar days. Premium processing will cost you an additional $1,440, but it is generally well worth it to keep your place in line.
8. Can I bring my family, and can they work in the U.S.?
H-1B visa holders can bring their spouse and children under 21 years of age to the U.S. under the H-4 visa category as dependents. While dependents are permitted to remain in the U.S., an H-4 visa holder is not eligible to work in the U.S. They can, however, attend school, obtain a driver’s license, and open a bank account while in the U.S.
9. How much does it cost?
An H-1B visa has hefty filing fees that can run over $3,000 depending on the number of employees an employer has and whether premium processing is elected. In addition, legal fees will run you around $3,000 or more depending on the complexity of the case.
10. Do I need a lawyer?
Yes. Like most immigration law, the H-1B regulations and related Labor Certification Application (LCA) are complicated and you must demonstrate to immigration officials and the Department of Labor that you have met all of the legal elements. In addition, given the cap, you have one “bite at the apple” since there is a good chance that if you make a mistake, the cap will be filled.