How Can I Get an Employee an H-1B Visa for a Small Business?
There may be many reasons why your business is looking to hire a foreign national as an employee. There may be a dearth of American workers who can do the job and the foreign employee may possess the required skills. However, it is a lengthy and complicated process to hire foreign persons for United States jobs and it can be especially challenging for small businesses. Sponsoring foreign employees for work visas can be costly and time consuming – luxuries that small businesses may not have. A common kind of visa that is used to bring foreign workers to the US is called an H-1B visa. An H-1B visa is an immigrant visa that allows a US employer to employer a foreign worker in specific specialty occupations.
The US limits the number of H-1B visas it grants every year. There is a cap of 85,000 on the number of H-1B visas granted every fiscal year. There is a lottery for the spots unless you are (a) a “cap exempt” employer or (b) the employee is in a “cap exempt” profession or (c) the employee is transferring their H-1B from one employer to another. This 85,000 number is broken down into two groups: 65,000 for first-time applicants and 20,000 for higher degree holders.
In order to sponsor an employee for an H-1B visa, there are several requirements and steps that your business must meet during the application process.
The position must meet certain requirements:
- The position must require knowledge that is obtained through a specific course of study at an institution of higher education or specialized training
- The employer can’t displace a US worker with the H-1B employee within 90 days
- The position must pay the “prevailing wage”
In order to sponsor an H-1B visa, the employer must show that they:
- Have the financial resources to pay the employee
- Will not displace a US worker in a similar job within 90 days of applying for the H-1B
- The H-1B visa employee won’t be placed at another worksite
There are certain requirements the employee must fulfill before getting an H-1B visa.
- The employee must have at least a bachelor’s degree or equivalent. These are typically professional level jobs that require skilled workers including (but not limited to) scientists, pharmacists, accountants, and tech experts
- The employee must possess the specialized education and training required for the position
- The employee must have an offer to work in the job
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The process of securing an H-1B visa for an employee can be costly, lengthy, and complicated.
Securing an H-1B typically costs the employer approximately $5,000 – $10,000 including legal fees.
The fees are broken down into:
- Filing fee ($460)
- Immigration attorney fees ($500 – $3000)
- American Competitiveness and Workforce Improvement Act (AICWA) of 1988 Fee ($750 – $1500)***
- Public Law Fee ($4000)*
- Premium processing fee ($1225)**
- Fraud Prevention and Detection Fee ($500)
*For employers with over 50 employees, over half of whom are on H-1Bs or L-1 visas
**To expedite processing
***1-25 employees ($750), 25+ employees ($1500)
Employers must pay these fees, and can not shift the costs to an employee through a pay reduction or invoice.The only exception is the premium processing fee, which can be paid by the employee if it includes documentation explaining why it was necessary. These fees are nonrefundable and can be difficult for small companies to justify because they are accompanied by the risk of possible rejection (and thus sunk cost). Certain types of businesses are exempt from some of these fees, notably non-profit institutions, schools, and government research institutions are exempt from the AICWA fee and smaller companies are exempt from the Public Law Fee.
There are a sequence of steps your business must take to secure an H-1B visa for a new hire.
You must submit a Labor Condition Application (LCA) form. This form is where your business documents the details of why you need an H-1B worker and your commitment to paying the employee a prevailing wage and not displacing US worker. If you are a small business, it can be wise to attach additional documentation on the financial health and history of your business, your business plan, your tax returns, and why this person is essential to hire for this role. In addition, you must submit the I-29 form (Petition for a Nonimmigrant Worker) and the first section of the H supplement (because the H-1B visa is an H class visa). This form helps the US determine if the employer meets the requirements for the H-1B visa.
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Next, you should wait to hear back from the government about whether the petition is approved. This typically takes three to four months unless you purchased expedited processing (15 calendar days). Keep in mind that U.S. Citizenship and Immigration Services (USCIS) met all of the caps for H-1B visa within the first 5 days of opening the application for petitions in 2019. So it is important to keep track of the annual H-1B timeline.
You may receive what is known as an RFE or “Request For Evidence” about your H-1B petition on behalf of an employee. If you receive an RFE, the government is requesting evidence to support your petition. It may be because information is missing or because the government has questions about whether the position or employee meet the requirements for an H-1B. Common questions include whether the job truly is a specialty occupation or whether the applicant has a truly relevant degree. If the H-1B visa application (petition) is approved, your employee must go to their embassy to process their visa.
H-1B visa holders may expect or hope that their employer will sponsor them for a Green Card, at additional cost. This should be an additional consideration when hiring an H-1B employee.
The cost of petitioning for a Green Card typically costs around $10,000 and many H-1B holders hope to petition for a Green Card.
The article above is not legal advice. Seek the advice of an experienced immigration lawyer for all immigration-related questions.