Recruiter Guide to H1-B Work Visa

Sep 15th, 2013
Recruiter Guide to H1-B Work Visa

Recruiters often encounter contractors that are working in the US on temporary H1b visas. It can get pretty confusing about what the different kind of visas are, what they involve and how it impacts the contractor, their family, their job, their immigration plans, etc. So we at OnContracting decided to put together a quick primer on the various kinds of visas and what they mean so you can start to get familiar with these important documents. Disclaimer: This does not constitute legal advice. Please consult Murthy, Khanna, immihelp and other online guides to learn more or an immigration attorney for your specific situation. We recommend Tahmina Watson, immigration lawyer in Seattle especially for startups if you are in Seattle.

H-1B Visa
The H-1B is a non-immigrant visa in the United States that allows US employers to temporarily employ (sponsor) foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer or leave the US.
"Specialty occupation" typically means biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requires the attainment of a bachelor’s degree. Authorization is strictly limited to employment by the sponsoring employer only. If the worker wants to change companies, the new employer would need to apply for a transfer and request to become the worker’s new sponsor.
Duration of stay
The visa holder is allowed to stay for three years, extendable to six years. If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
Important Highlights
The current law limits 65,000 foreign nationals who may be issued a H-1B visas each fiscal year(FY). Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.
The United States Citizenship and Immigration Services (USCIS) starts accepting applications on the first business day of April for visas that count against the fiscal year starting in October. If there are more applications than available visas, there is a lottery system that decides whose application makes it through for that year.
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa.

H-1B visa holders can bring immediate family members (spouse and children under 21) to the US under the H4 Visa category as dependents. An H4 Visa holder may remain in the US as long as the H-1B visa holder retains legal status. An H4 visa holder is not eligible to work or get a Social Security number (SSN). An H4 Visa holder may attend school, get a driver's license, and open a bank account in the US.
The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of US workers. For every H-1B petition there must be included a Labor Condition Application (LCA) - designed to ensure that the wage offered to the non-immigrant worker meets or exceeds the "prevailing wage" in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers to break a strike or replace US citizen workers.

What recruiters need to know when hiring a contractor by sponsoring their H1B visa

·        If it’s a new H-1, you need to apply in March to make the person eligible to work starting Oct. If its an existing H1, you need to see if you have a current Labor Condition Approval (LCA) or how much time it will take to get an LCA and H1 transfer and if this works for the contractor.
·         if the contractor has a valid work visa (I797 or I94 should show this)
·         they are not in their 6th year of H1 as they may not be eligible for extension if they haven’t started their greencard application before entering the 6th year (unless you plan to hire them for a short period only)
·         they are not ‘out of status’ (although this is not an automatic disqualifier) as it may affect their H1 transfer or greencard process later.

What recruiters need to know if hiring a H-1B contractor through a sub-contractor

·         Although you don’t need to worry about the visa issues since someone else is responsible for that, it may be good to find out the back issues if any (if the employer/h1b visa holder tells you this) as it may impact whether the contractor will stay
·         while it may not affect you directly - sometimes the sub-contractor may not even hold the contractor’s H1 and maybe just a broker marketing the candidates on behalf of someone else. When this happens be aware that they may not necessarily ‘control’ or ‘be able to commit’ on behalf of the candidate. Try to speak directly to the candidate to make sure they are serious about your opportunity.

What candidates need know if transferring your H-1B visa to a consulting or staffing company?

·         the company is reputable and has a high h1b visa approval rate (and is not blacklisted).
·         the company’s policy if you go on the bench or your project ends. Some US consulting companies (e.g. Volt) immediately terminate your employment if they can’t find you a project and you risk going out of status if this happens.
·         Clarify if the company will extend your visa when it expires and if they will process your greencard if you wish to do so and how soon it will start the process.
Important Links
Top H-1B Visa Sponsors by Industry, Occupation, Economic Sector and Locations
U.S. Citizenship and Immigration Services
United States Department of Labor
Source: Wikipedia CC-BY-SA

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