We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals. When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another visa category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued. Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work visa categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let's discuss other visa scenarios that I have been able to implement for my clients.
A. Basic requirements for the H-1b Visa Program:
1. Labor Condition Application Attestation: An employer must attest, through the filing of a Labor Condition Application ("LCA") that the H-1b visa employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b visa dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.
2. Filing of the H-1b visa Petition: The filing of the H-1B visa petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b visa petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.
3. Filing Fees: The employer must also pay certain filing fees: The H-1b visa program is the only non-immigrant visa type that has its own filing fee. They don't come by cheap.
4. Numerical Limitations: There only 65,000 visas given annually to H-1b visa holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master's degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.
B. Alternatives to the H-1B Visa Program: