For a business looking to fill a specialized position in your company, you may have to look internationally for the right candidate. If you find the best employee for the job outside the United States, they must have the right immigration status to legally work for you.
Fortunately, you’ve got options. For decades, the H-1B visa has been popular with employers and employees alike because of its accessibility, broad requirements, and long duration.
The H-1B visa allows a U.S. company to sponsor a highly educated nonimmigrant worker for an initial period of up to 3 years. The H-1B visa offers advantages for both employers and employees. As an employer, you get access to a much wider pool of candidates – literally the best in the world. Meanwhile, the H-1B visa allows an employee’s family to come with them. Plus, they can pursue dual intent for legal permanent residency while they work for you.
Of course, the H-1B visa comes with drawbacks, too. For one, approvals are granted by random lottery and there’s a yearly limit – with few exceptions.
Whether you choose to pursue an H-1B visa compared to others like the E-2, J-1, O-1, or TN classification depends on what’s best for your business. A local business immigration lawyer can evaluate your situation to come up with a solution catered to your needs. Your lawyer can then help you execute the visa sponsorship and approval process.
At Holmes Business Law, we handle business immigration needs for Philadelphia area companies who’re looking to hire international talent. Call us now at 215-482-0285 to talk to a qualified Philadelphia business immigration lawyer about your best options moving forward.
Pros and Cons of H-1B Visas for Employers
What Are the Benefits of Hiring H-1B Workers?
One of the greatest benefits of the H-1B visa is how broadly it applies to workers. Other comparable visa classifications require the employee to invest thousands of dollars, have managerial experience, or hold a master’s degree or higher to qualify.
On the other hand, the H-1B visa only requires that the candidate:
- Hold a bachelor’s degree or its foreign equivalent, and
- Apply for a “specialty occupation” job requiring specialized knowledge that they possess based on their schooling or experience.
In addition, the H-1B visa is available to professionals from any country in the world. This is unlike the E-2 visa, which is limited to countries that have signed a treaty, and TN-class visas, which are only available to Canadian and Mexican nationals.
The bachelor’s degree requirement allows you as the employer to hire a broader field of candidates who might not necessarily have more specialized degrees. H-1B visas are often used by companies in the fields of medicine, technology, engineering, business, and law.
As the employer who’s creating the job position, you control the job description. In order for an H-1B employee to qualify for the position, you must write the job requirements in a way that meets both the bachelor’s degree and “specialized knowledge” conditions for H-1B visas.
In addition to its broad application, the H-1B visa offers an initial term of up to 3 years, which is generous compared to some other options. For example, the B-1 visa only grants 6 months and the J-1 as little as 1 year. That might work for short-term projects but not for longer employment contracts where you want your employee to grow with the company.
At the end of your employee’s first visa period, they can renew their H-1B for another 3 years, allowing for a total of 6 years. This extension may be used just once, with limited exceptions. After that, your employee will have to seek another type of visa. Some other visas may be extended indefinitely – your business immigration lawyer can help you decide which option is the best way forward for your company and the employee’s future.
Limitations & Disadvantages of H-1B Visas
The biggest drawback of the H-1B visa is its lottery system. H-1B visa candidates are picked at random, with a cap on the number of visas approved every year. Because the H-1B visa is so accessible and popular, the number of petitions far exceeds the cap every year.
In 2021, the H-1B visa limit is a total of 85,000. As an employer, you can avoid this limit only if you fall into a cap-exempt category. This usually covers government research organizations, institutions of higher education, and non-profit organizations.
As a result, despite all your best efforts – your chosen candidate may be denied their H-1B visa based purely on luck. If your petitioner isn’t selected, they’ll have to wait until the following year to reapply. There’s no telling how long approval may take.
Because of the lottery process, H-1B visa applications also have strict deadlines. You must wait until April 1st to file your petition and you cannot begin work until after October 1st that year.
H-1B Visa Requirements, Sponsorship, and Approval ProcessWhen you hire an H-1B visa employee, you’re not just investing in that worker’s future with your company. You’re also responsible for paying all the fees in the immigration petition process. That includes a $460 filing fee plus any additional program fees that can total anywhere between $500 to $4,000 based on the nature of your company.
The H-1B visa process proceeds in the following order:
- Review the details of the job to make sure they meet H-1B requirements
- Determine the pay rate for the H-1B worker, which must be equal to any U.S. workers in the same or a similar position
- Provide notice to your employees that you will be pursuing H-1B workers
- Submit a Labor Condition Application (LCA) to the U.S. Department of Labor confirming that the international hire won’t affect employees who currently work for you
- Upon your LCA being approved, complete and submit a petition packet to the USCIS including Forms G-28 and I-129 (Petition for a Nonimmigrant Worker)
- If your petition is approved, you will receive a Form I-797 Notice of Action
- Your nonimmigrant worker will apply for a visa with the Department of State through either a consulate in their home country or at a U.S. embassy – their application must include the approved petition and all of the relevant forms
Your employee will usually hear back about their petition within a few months. If they’re approved, they can show their visa to enter the United States.
Immigration issues can be complex, but a business immigration lawyer can help you get the best talent for your team without the hassle. Whenever you apply to sponsor an H-1B visa, you put in a large investment towards hiring that worker. You want to give yourself the best chance at approval from the beginning so that you don’t waste your time and resources. That means providing accurate and comprehensive information in your application and petition documents.
Call the Philadelphia offices of Holmes Business Law now at 215-482-0285 to get started on your H-1B petition the right way.