Main with passport in airport
An H-1B visa allows you to hire an employee from another country into a specialized position for three to six years. — Getty Images

If you're having trouble finding the appropriate talent for your business, you may want to consider sponsoring an employee from outside the United States to work for your company.

Employers sometimes have the option of hiring highly educated nonimmigrant workers if they are unable to find workers domestically. Nonimmigrant workers can typically be sponsored for a limited time by an employer through the H-1B visa program, issued under the Immigration and Nationality Act. Though the program provides benefits for both parties, employers should review and consider the program’s terms and conditions before beginning the application process.

Before we go further, an important note: President Trump issued a proclamation in June 2020 that suspended the entry of many H, J, and L temporary workers into the U.S., specifically including H-1B workers. In October 2020, U.S. District Judge Jeffrey S. White halted the implementation of the proclamation with a preliminary injunction and issued an order to resume processing petitions for all of the covered nonimmigrant visa categories. However, the preliminary injunction only applies to members of associations that were plaintiffs in the lawsuit against the proclamation. These associations are:

The preliminary injunction will remain until there is a final ruling regarding the case (or if it is overturned on appeal), so this decision could remain on the books for some time.

What is an H-1B sponsorship?

In order for a company to employ an H-1B worker in the U.S., the employer must petition for that worker to obtain his or her H-1B nonimmigrant visa. In order for the employer to successfully petition for an H-1B worker, the worker must have at least a bachelor’s degree (or the foreign equivalent of a U.S. bachelor’s degree), and the position they’re applying for must be in a “specialty occupation” that requires the use of specialized knowledge to perform the job’s duties. Such job positions may be found in areas of specialty such as engineering, law, business, medicine, etc.

Some things to consider about an H-1B sponsorship:

  • A nonimmigrant worker that receives an H-1B visa can work in the U.S. for up to three years on an initial grant of status. The employer has the ability to extend the status of that worker for only an additional three years, unless the employer seeks an employment-based green card for that worker while they’re in the U.S. on their H-1B visa.
  • Employers must file a Labor Condition Application (LCA) with the Department of Labor wherein the company makes various attestations before it can complete the formal H-1B petition and all of its attendant forms.
  • For Cap-Subject H-1B petitions, employers must be cognizant of the fact that they need to utilize the USCIS’s new H-1B registration system before they can submit their formal H-1B petitions with U.S. Citizenship and Immigration Services (USCIS).
  • The employer files all of the petition documentation for the worker and pays for all the fees associated with the petition process.

How to petition for an H-1B worker

Before obtaining an H-1B visa for a nonimmigrant worker, there are a few things that need to be completed and processed. The employer is responsible for paying all the fees associated with the petition process. The fees associated with filing an H-1B petition include a $460 filing fee, and various other additional program fees that your company may be subject to in your petition. These separate, additional fees range between $500 and $4,000, and in most cases, your company will be subject to more than one of these additional fees.

Employers need to review the details of the proposed job to ensure it meets the requirements of the H-1B visa program. The job must require a bachelor’s degree or higher and specialized knowledge in the field of the occupation. They’ll also need to determine the pay rate for the H-1B worker.

Employers that seek to utilize the H-1B program must provide notice to their current employees of the company’s desire to employ H-1B workers. The employer must provide notice to its employees of the company’s pursuit of H-1B workers either by email, electronic bulletin board or printed notice at their worksite. This must occur at least 30 days before the date that the Labor Condition Application (LCA) is filed with the Department of Labor.

In the LCA, the employer must confirm the following:

  • The nonimmigrant worker will receive the same, or an amount equal to the pay and benefits of U.S. workers in that type of position.
  • Working employees will not be affected by the new hire.
  • There has not been, or will not be, a controversy regarding labor conditions or pay at the time of hiring.

The LCA is reviewed within about a week of submission to ensure it was filled out completely and accurately. Once the LCA is approved, employers need to complete a petition packet that includes Form G-28 and Form I-129. This will be submitted to the USCIS upon completion. Employers will receive a Form I-797 Notice of Action if the petition is approved.

The nonimmigrant worker will take a copy of the completed petition with all its forms and apply for their visa with the Department of State. They can do this at a consulate within their home country or at a U.S. embassy. Once the visa is approved, the worker will apply for admission into the U.S. at a port of entry before a U.S. Customs and Border Protection officer. Employers will follow normal hiring procedures once the worker has been admitted.

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Published October 15, 2020