Temporary Work Visas for Professional Workers
Temporary work visas for foreign professionals can be very beneficial for American businesses. Some foreign professional workers who seek employment in the United States may be eligible for an H-1B visa. To qualify for an H-1B work visa, an individual must have a pending job offer for a position within the United States requiring a four-year college degree or higher and must possess that degree, or the equivalent based on a combination of education and experience.
Obtaining an H-1B visa in New York City or elsewhere can be complicated because it often requires various proofs by both the employer and the prospective employee. The employer must file a petition and documents with the U.S. Citizenship and Immigration Service (USCIS), but must first obtain a labor condition application approval from the Department of Labor. Subsequently, if the foreign national is overseas he must request a visa through the appropriate U.S. embassy or consulate. If he is already in the U.S., he can apply through USCIS for a change of status or change of employers if he already has H-1B status. The New York City visa attorneys at Garganigo, Goldsmith & Weiss can guide both employers and employees through the process of obtaining an H-1B visa.
H1B visas
Compared to other temporary visas, H-1B visas have a relatively long duration. H-1B visas are generally valid for up to three years initially but may be extended for up to six years. Additional extensions are also available if steps toward a green card application have been made. Some individuals who originally enter the United States on an H-1B visa are later able to convert it to another type of non-immigrant visa. Some are even able to gain a permanent visa, or green card.
USCIS issues only 65,000 H-1B visas per year. While this cap is subject to some exceptions, it is advisable to file for an H-1B visa early—but no earlier then six months before the foreign national plans to start work. Temporary workers may also obtain H-4 visas for a spouse and unmarried children under the age of 21. Our qualified H-1B visa attorneys in New York City can guide you through the application process and help you and your family take the next step toward achieving professional success in the United States.
Frequently asked questions by employers of international students
- Are recent graduates eligible to immediately begin working with my firm?
- When should we file our H-1B petition?
- Is my firm required to provide specific financials during the petition process?
- How much does the application process cost?
- How long does the application process take?
- If a student’s Employment Authorization Document based on Optional Practical Training expires before October 1, 2011, can my firm extend the visa coverage until the October 1, 2011 H-1B visa start date?
- If my firm is not a TARP recipient, do we have any obligations to advertise or recruit for the position?
- How do you advise an F-1 student who previously had H-1B visa status, regarding how this previous H-1B status would impact their H-1B petition process?
Q. Are recent graduates eligible to immediately begin working with my firm?
A. Once the graduate receives his Employment Authorization Document (EAD card) from the USCIS, he can commence employment. The required form I–765 to apply for the EAD card is usually filed by the student prior to graduation and does not require a sponsoring employer or an actual job offer. This document is necessary for the I-9 employment verification process.
Q. When should we file our H-1B petition?
A. Since the government currently issues only 65,000 H-1B visas per year, to ensure success, petitions should be filed as early as possible. Petitions can be filed six months in advance of the anticipated start of employment. The immigration fiscal year begins October 1, so petitions should be filed as close to April 1 as possible. Two years ago, there were many more petitions filed than there were H-1B visa numbers available. When more than 65,000 petitions are received during the first week of the mail-in period, a lottery takes place for those who filed during this first week. Because of the current poor economic conditions in the U.S., lotteries were not necessary during the last two years but the government did run out of H-1B visa numbers during the fiscal year. Based on projections, H-1B visa numbers for the current fiscal year should remain available through at least December 2011.
Please note that a separate quota of 20,000 is available to those who hold U.S. Master’s degrees. If this quota is filled prior to the regular H-1B quota being filled, these petitions are put into the regular H-1B pool.
Q. Is my firm required to provide specific financials during the petition process?
A. In most situations, this is not necessary. The request by the government for financial documentation is usually triggered when the company is relatively new, has relatively few employees, or because it has indicated on the petitioning form (I- 129) that its annual income might not be sufficient to pay the wage being offered to the foreign worker who is being sponsored. For those companies that would rather not reveal their exact gross sales or net income to the USCIS, the USCIS usually accepts a response, “in excess of...” which will satisfy the government’s concern about being able to pay the “prevailing/offered wage.”
Q. How much does the application process cost?
A. Government filing fees are $325 for the I-129 petition, $500 for the anti-fraud fee and $1,500 for the educational fund fee if the company employs more than 25 workers. If the company employs less than 25 workers, the educational fund fee is only $750. If the company wants a guaranteed response within fifteen days, they can pay an extra $1,225 to the government for “Premium Processing.”
Attorneys’ fees will vary significantly. Working with an immigration attorney is strongly advised. Though legal fees vary, most experienced lawyers charge between $3,000-$4,000.
Q. How long does the application process take?
A. USCIS processing times are published on their website: www.uscis.gov. Depending on how busy they are, this can take anywhere from several weeks to several months. Because most H-1B petitions are filed in April but are not effective until October 1, we rarely recommend using “Premium Processing” for this type of application since in this saturation employment cannot begin until October 1 regardless of how quickly the petition is approved.
Q. If a student’s Employment Authorization Document based on Optional Practical Training expires before October 1, 2011, can my firm extend the visa coverage until the October 1, 2011 H-1B visa start date?
A. This is no longer a concern. Practical training is automatically extended with the timely filing of an I-129 petition and remains in effect unless the I-129 petition is denied.
Q. If my firm is not a TARP recipient, do we have any obligations to advertise or recruit for the position?
A. No. Unless a company obtained TARP funds or has been found to be a “willful violator”, there isn’t any requirement to prove that you have made an effort to recruit a qualified US worker for the position. However, should you subsequently sponsor this worker for a green card based on a PERM labor certification, advertising and other forms of recruitment will be required.
Q. How do you advise an F-1 student who previously had H1B visa status, regarding how his previous H-1B status would impact their H-1B petition process?
A. This would depend on how long ago he had the H-1B status, how much time he has used up under his previous six years of H-1B eligibility, etc. Generally speaking, H-1B visas holders are entitled to keep their H1B visa number for six years. Thus, if at the time they want to have an H-1B petition filed in their behalf there aren’t any H-1B visa numbers available to new applicants, their previous H-1B approval can be very advantageous to them because they may still “own” their H-1B visa number. Since there are so many variables, this question would be better addressed by an experienced immigration attorney after hearing all the particular facts, rather than through a generalized Q & A such as this.
Contact us
The immigration law firm in NY of Garganigo, Goldsmith & Weiss has more than 30 years of experience helping professional workers gain admission to the United States. If you are an employer planning on hiring a foreign professional employee or if you are a foreign national who has received a job offer in the United States, call us toll free at 1-888-312-9071 or contact us online to discuss your situation with a qualified New York City H-1B visa attorney.
