H-1B for a Employee of a Small Newly Created Firm

Thu, 02/17/2011 - 12:55 | by islawfirm

I.S. Law Firm secured the approval of an H-1B visa petition for an employee of a small and newly created accounting firm.

The case was challenging because of the small size and relatively young age of the sponsoring company. The sponsoring company had only one full-time employee at the time of petition. Although the size of the employer is not a basis for denial of petition, it creates an inquiry into the scope of the alien professional’s duties with the employer, and whether the tasks will be limited to those of a qualified specialty occupation.

Under the H-1B visa classification, an employer may sponsor temporary non-immigrant visas for alien professionals or specialty occupation workers with a bachelor’s degree or higher. The H-1B status is available for initial term of three years and can be extended for an additional three years up to a maximum of 6 years. Typical H-1B occupations include accountants, computer programmers, architects, engineers, doctors and college professors.

There is an annual cap on number of H-1B visas issued. Usually the number of H-1B applications received by the U.S. Citizenship and Immigration Services on the first day of application admissions exceeds the annual limit. Therefore, it is extremely important to get started on the process immediately upon the decision by the employer to hire the alien worker.

In order to be able to hire an alien professional, the employer must:

  • Be a U.S. Employer. The employer must be a U.S. company with a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here.
  • File a Labor Condition Application. The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The employer must describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.
  • File a petition with U.S. Citizenship and Immigration Services. After the LCA is approved by the DOL, the employer must file a petition with U.S. Citizenship and Immigration Services (USCIS), a part of Department of Homeland Security. The employer must demonstrate that the position requires a person in a "specialty occupation." This means a position that requires a minimum of a bachelor's degree or its equivalent in experience and/or education in a specific field related to the job.
  • Maintain records. The employer must maintain a public access file containing information about the required wage to be paid to the H-1B worker and the posting of notice. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.
  • Pay costs. Employers are required to pay a fee for each H-1B application. If the employer terminates the services of the employee prior to the expiration of the H-1B status, the employer is also responsible for paying the employee's return transportation to his or her last foreign residence.

In order to qualify for H-1B visa, the employee must:

  • Demonstrate qualifications. The employee must demonstrate that he/she has the required qualifications for the specialty occupation and the specific job offered by the employer. The employee must be able to prove that his/her foreign university degree and/or work experience qualifies as the equivalent of a U.S. degree.
  • Maintain legal status. The employee must maintain lawful status in the United States. To maintain the current H-1B status, the employee must continue to work for the sponsoring employer. However, the H-1B visa holder may change employers if the new employer files a petition on his or her behalf. Under U.S. immigration laws, a person who fails to maintain lawful status may be deported and never allowed to re-enter the United States.

I.S. Law Firm has helped a number of foreign professionals to successfully obtain H-1B work visas. We have also assisted alien professionals in obtaining extensions for their H-1B work visas, and helped H-1B visa holders through the process of changing employers. For free initial consultation please call (703) 527-1779.