Sometimes the best candidate for a
given position is not American-born.
In fact, in the never-ending quest to stay competitive, many U.S. companies
actively recruit worldwide for talent in a
diverse range of areas, such as IT, accounting, market research analysis and business
“Companies that want to sponsor foreign
workers often procure H-1B visas to bring
them in,” explained Dr. Sara J. Coen,
esquire, director of the Immigration and
International Division for Rothstein
Rosenfeldt Adler. “If they wish to do so, the
time to act is now, in March, because it is a
time-consuming process. To the chagrin of
many, H-1B visas are subject to caps, and
there are only 65,000 available per year.
The H-1B visa is assigned on a first-come,
first-serve basis, and it can only be requested starting April 1 each year. Last year, the
quota was reached in less than 48 hours.”
What is an H-1B visa?
The H-1B visa is the most sought-after
employment visa for U.S. corporations. It is
used to bring a worker temporarily to the
United States to work in a ‘specialty occupation’ or a professional position.
In order to qualify, the foreign worker
must possess at least a bachelor’s degree
or its equivalent and state licensure, if
required. ‘Specialty occupation’ is defined
as requiring theoretical and practical application of a body of highly specialized
knowledge in a field of human endeavor,
including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine and
health, education, law, accounting, business specialties, IT, theology, and the arts.
H-1B work authorization is strictly limited
to employment by the sponsoring employer.
The H-1B employee’s spouse and unmarried
children under 21 years old may be granted
a dependent H-4 visa, and they may live and
attend school in the U.S.
How long can the H-1B employee remain in
The H-1B is a temporary status with specific limitations on periods of stay in the United States. The initial H-1B visa petition
is usually approved for three years; after
the initial period, three more years are
available. The employer must file an H-1B
petition extension after the initial three
The law requires that after six years, the
H-1B worker must spend one year outside
the U.S. before he or she is entitled to have
another H-1B visa. However, upon securing
an H-1B visa, the employer has the option
to sponsor the foreign national for permanent residency, or ‘green card,’ and it is not
uncommon for workers on H-1B visas to
obtain permanent residency during their
initial three-year stay. Even if the green
card is not obtained in three years, usually
the H-1B visa holders pursuing a green
card are allowed to extend their stay
beyond the six-year limit upon compliance
with certain procedures.
What does the employer need to do?
The employer must make a bona fide job
offer to the foreign professional, complete
a Labor Condition Application with the
Department of Labor describing the position and salary, and upon its approval, file a
petition with the U.S. Citizenship and
Immigration Services (USCIS). The
employer must document that the position
requires a minimum of a bachelor’s degree
or its equivalent.
What does the employee need to do?
The employee must prove that he is qualified for the specialty occupation position
offered by the employer and must be able
to show that the university degree and/or
work experience is the equivalent of a U.S.
degree. This is usually done by an evaluation of credentials with a professional
What about if the position requires a master’s
In addition to the 65,000 yearly H-1B visas
for professionals with a bachelor’s degree,
20,000 visas are set aside for those individuals who hold a U.S. master’s degree. In
addition, individuals who will work for
organizations like universities and colleges
are exempt from the mandated quota.
When should a U.S. employer file for an H-1B
Since negotiating, preparing the position
description, evaluating and translating documents, and filing the Labor Condition
Application may take several weeks, the
best time to begin preparing the H-1B visa
package is at the start of the calendar year.
For the best chance of obtaining the H-1B
visa, the entire package must be ready to
mail by April 1, 2008. It is strongly recommended that employers file their H-1B petitions as soon as possible; there is nothing
more frustrating for an employer than to
find the ideal candidate and not be able to
hire that person because procrastination
and bureaucracy got in the way.
DR. SARA J. COEN, esquire, is the director of the Immigration and International Division for Rothstein Rosenfeldt Adler, Attorneys at
Law in Fort Lauderdale. Reach her at (954) 522-3456 or [email protected].