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What H-1B is and Is Not; When is the H-1B Petition the Right Thing to Do For the Employer?

September 13, 2013

What is H-1B: A Temporary Work Visa/Status

H-1B visa/status is a tool available to U.S. employers to temporarily employ foreign nationals in specialty occupations in the fields of computer science, engineering, teaching, finance, and other fields providing that the proposed H-1B job is a “specialty occupation.” A specialty occupation in my mind begins with this question: “Does the job require at least a bachelor’s degree in a specific field?”

 

 

 

What it is Not: A Permanent Solution to Keeping the Worker

 

H-1B is it not a green card, also known as permanent resident alien status.   If the employer is interested in keeping the worker long-term, the employer should explore employment-based green card process for the worker, in which case the  H-1B may serve as a temporary visa allowing the employer to employ the worker temporarily while the employer is working on the worker's green card. 

 

Can a Foreign Worker Apply for an H-1B?

 

No.   Only U.S. employers may apply for H-1B classification for foreign workers.

 

When is the H-1B sponsorship the Right Thing to Do for an Employer?

 

Simply put, an employer should embark on the H-1B journey only when the employer REALLY needs the foreign worker.   It is true that there is no labor shortage requirement for H-1B visa, and that the employer may file an H-1B petition for a worker in an occupation with plenty of available workers.   The employer may certainly file an H-1B petition for a counselor position with the educational requirement of a psychology degree.    In practical terms, however, many employers stay away from going through considerable hurdles of the H-1B process for positions that can be easily filled by U.S. workers.  Faced with the realities of the H-1B process, such as uncertainty of whether H-1B numbers are available, uncertainty as to whether the H-1B petition will be approved, waiting times, and considerable filing and legal fees, many U.S. employers get involved in the H-1B process when they have a hard time finding qualified U.S. workers.  That is why for years now U.S. employers have been filing the overwhelming majority of H-1B visas for engineering and IT positions.

 

When it is Not the Right Thing to Do for the Employer to File an H-1B Petition?

 

When the employer is doing someone a favor: this is simply wrong.  If the employer is “helping” a foreign worker rather than addressing a real labor need through the H-1B process, the employer may be in violation of federal law, and that H-1B will likely bring nothing but trouble to the employer and the worker.

 

 

Posted by

Mira Mdivani
Corporate Immigration Attorney
Mdivani Law Firm

 

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