H1B FAQs

 

Any US employer can sponsor an H1B petition, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H1B petition itself. However, employers should take note that sponsoring an H1B petition involves them making a number of undertakings, enforceable by heavy civil and criminal penalties: These undertakings are:-

To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;

That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer's US-resident employees in similar jobs;

That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B aliens to be employed at the site of any subsequent strike or lockout;

That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H1B alien will be working;

To maintain records of the LCA and the H1B alien's employment for inspection by the US Department of Labor.
Note that the prevailing wage is generally lower for non-profit and academic/research organizations.

Q. Can the H1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must be made for each site at which the employee will be working (though there is a limited exception for short-term assignments at different sites within the same Metropolitan Statistical Area).

Q. Can employment/contracting agencies sponsor H1B visas?
A. Yes, but remember the sponsor has to pay the prevailing wage whether or not they can find employment for the alien.

Q. How many H1B visas are available each year?
A. 65,000 for the fiscal year starting October 1, 2005.(subject to change)

Q. What happens when the annual quota is reached?
A. The BCIS announces a cutoff date once the annual quota is reached. Petitions filed before the cutoff date, but after the quota has been used up, will be held for processing the following October. Petitions submitted after the cutoff date will be returned to the petitioner without consideration.

Q. What are the government fees involved in obtaining an H1B visa, and who pays them?
A. The USCIS filing fee is currently US$ 185, which must be paid by the sponsoring employer. In addition to the filing fee, the USCIS imposes a Fraud Prevention and Detection fee of US$ 500. For H1B applications, the USCIS also imposes a American Competitiveness and Workforce Improvement Act (ACWIA) fee of US$ 1,500 if the petitioner employs more than 25 full-time equivalent employees, including any affiliate or subsidiary, or US$ 750 if the petitioner employs 25 or less full-time equivalent employees. Finally, consular visa processing usually involves a charge of approximately $105 in local currency. Prevailing Wage Determinations and Labor Condition Applications are free of government charges.

Q. How long does the process take?
A. On average 3-6 months in total, depending on the BCIS Regional Service Center processing the application - unless using Premium Procession.

Q. Is it possible to speed up the process.
A. Yes. The BCIS has instituted a program called Premium Processing. If the INS is paid an extra $1,000 on a separate check, the BCIS guarantees it will adjudicate the petition in 15 days or notify the petitioner if more evidence is needed.

Q. Can the alien come to the USA on a visitor visa or visa-waiver while the H1B petition is being processed?
A. This is possible but not advisable, and under no accounts should the alien risk putting in jeopardy the issue of an H1B visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the US with a visitor visa/visa-waiver or when applying for an H1B visa at the US consulate in their own country.

Q. If I sponsor an alien worker for an H1B, do I have to employ him/her for the full period of the visa's validity?
A. No, but if you dismiss the worker before the H1B visa expires you are responsible for his/her reasonable costs of return transportation to their home country. You will probably not be responsible for such costs for his or her dependants, however.

Q. Can the H1B alien's spouse/children work or study in the US.
A. Dependents of the H1B alien are granted H-4 visas, which are not employment-authorized. Thus they cannot work unless their prospective employer unless they can obtain a work visa in their own right. H-4 dependents may, however, undertake study in the USA.

 

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