Last month I shared some information with you regarding the number of companies that are willing to transfer H-1B visas as well as how many predictive analytics professionals are on H-1Bs at various points in their careers.
The topic of H-1Bs has been in the news lately and based on some of the reactions I have read, there seem to be many misconceptions about the immigration process in employment. I decided to ask an experienced immigration attorney, Mr. David Rubman, to answer a few questions about the H-1B process. David has over 25 years of experience and has taught immigration law at Northwestern University School of Law. He is currently head of the firm Rubman & Harris in Chicago. Here are the highlights from our conversation.
The First Steps:
Linda: What is OPT?
David: OPT (Optional Practical Training) is a temporary work permit that is generally granted to a student on an F-1 visa who has completed his or her studies.
Linda: Are there any restrictions on OPT visas or can candidates on OPTs work for any company?
David: The student can work only in his or her field of study.
Linda: How long is an OPT visa valid for?
David: It is usually issued for 12 months, but can be extended for another 17 months for certain graduates in the sciences, math, and technology.
Linda: Once the OPT is ended, what options does the employee have?
David: In most cases, the employer needs to apply for an H-1B visa for the employee.
H-1B Visas – The Basics:
Linda: Can you briefly describe the H-1B visa?
David: The H-1B visa category is available for foreign nationals working in professional-level positions. H-1B visas are generally approved for three years, with a maximum period of six years that someone can stay in the US.
Linda: One of the misconceptions some people have about hiring H-1B candidates is that it gives preference to foreign candidates over Americans. Can you comment?
David: Rest assured the Department of Labor oversees hiring practices to make sure that the salary offered to H-1B candidates cannot be lower than the wage usually paid to other employees in the same positions. In other words, an employer cannot use H-1B employees to undercut wages of US citizens. However, there is no requirement that the employer must show there is a shortage of US workers.
Sponsoring an H-1B:
Linda: One of the biggest concerns we hear is related to the “H-1B cap.” What is the cap, and how does it impact our clients and candidates when sponsoring an H-1B candidate?
David: There is a limited number of H-1B visas that can issued each year. Currently that limit is 85,000. When the government receives enough applications to reach the limit, they stop accepting H-1B visa applications. This can be a big problem for someone who applies for an H-1B after the annual limit has been reached.
Linda: There is a separate quota for people who have Master’s degree earned in the US. Does that fix the problem?
David; No, I’ve included the 20,000 in the 85,000 total. In every year since the mid-2000’s, the quota has been reached for people who hold U.S. Master’s degrees as well as everyone else.
Linda: And some employers are exempt from the cap and can get H-1B employees at any time of the year?
David: Yes, universities and non-profit organizations affiliated with universities are “cap-exempt” and can get H-1Bs at any time of the year.
Linda: So, assuming the employer is not cap exempt, how can an applicant ensure his or her application gets accepted under the annual quota?
David: Apply as early as possible. Applications are accepted starting on April 1 for the next fiscal year that starts on October 1.
Linda: How much does it cost for a company to sponsor a candidate for an H-1B?
David: Immigration application fees are high. For small companies under 25 employees, the fee is $1575. For larger employers, the fee is $2325. Attorney fees are generally in the $2000-$3000 range. Under the H-1B program, the employer MUST pay all those fees – the employee is not allowed to pay for any of the process.
Transferring an H-1B:
Linda: We have had some issues arise when people transfer from one H-1B employer to another. How does that work?
David: In most situations, transferring from one H-1B employer to another is simple. Once the new employer files the application, the employee can start working for the new employer. The employee does not have to wait for the approval to start work.
Linda: What about when the first employer is cap-exempt, but the new employer is subject to the cap?
David: That can be a tricky situation. If you are a candidate coming out of a non-profit or other cap-exempt company, your new employer needs to file a brand new H-1B application and be accepted into that year’s cap. Timing can be tricky, as job offers do not always come out in April when applications start. This can be complicated, so each case must be analyzed closely.
Coming up next:
I hope this clears up some of the confusion behind visa policies in employment. Of course, we have only scratched the surface and if you have any additional question, David is a great resource. I’m grateful for his time in answering some of my questions, and in the next couple of weeks I’ll share the rest of our conversation regarding the Green Card process and the path to Permanent Residency.