Useful Links
U.S. Citizenship and Immigration Services (USCIS) Website
Social Media
Statistics
Annual Caps for H-1B for Fiscal Years: 85,000 visas
- 65,000 visas
- 20,000 visas for the master’s cap*
The master’s cap – individuals with advanced degrees from U.S. institutions.
Topics
Employer Sponsorship for an H-1B Visa
Explore what employer sponsorship entails, why it matters, and what responsibilities your employer takes on when they decide to sponsor your H-1B visa.
Embarking on a career in the United States through an H-1B visa is a great opportunity, but it’s not a journey you take alone. Your employer – the essential partner in your H-1B journey. Let’s explore how.
What is Employer Sponsorship for an H-1B Visa?
At its core, employer sponsorship means a U.S. company is willing to hire you and support your petition for an H-1B visa.
Unlike other visa categories where you might apply independently, the H-1B is employer-driven. This means you cannot apply for an H-1B visa without an employer who is committed to sponsoring you.
The H-1B visa is designed for specialists who have at least a bachelor’s degree and can actually do some great things.
Why Employers Choose to Sponsor H-1B Visas
Before diving into the employer’s responsibilities, it’s helpful to understand why companies choose to undertake this process:
– Access to specialized talent: When employers can’t find the right skills domestically, they look globally to fill critical positions.
– Competitive advantage: Diverse teams with international perspectives can drive innovation and help companies expand into global markets.
– Retention of valuable employees: For international students transitioning from OPT (Optional Practical Training), H-1B sponsorship offers a means to retain talent already integrated into the company.
The Employer’s Role: Step by Step
1. Determining the Need for Foreign Talent
Employers must identify positions that require specific skills that are hard to fill with U.S. workers. They should be ready to demonstrate this need throughout the process.
2. Labor Condition Application (LCA)
One of the employer’s first formal steps is filing an LCA with the Department of Labor. Through the LCA, the employer makes several important attestations:
– They will pay the H-1B worker a higher wage than the actual wage paid to similarly employed workers.
– Working conditions for U.S. workers won’t be adversely affected.
– There is no strike or lockout at the employment place.
– Notice of the filing has been provided to existing employees.
3. Filing the H-1B Petition
The employer must file Form I-129 with U.S. Citizenship and Immigration Services (USCIS) after receiving LCA certification.
What’s inside the petition?
– Documentation proving the position qualifies as a specialty occupation.
– Evidence that the foreign worker has the required qualifications.
– The certified LCA.
– Required filing fees, which can be substantial.
4. Navigating the H-1B Cap and Lottery
Most employers must contend with the annual H-1B cap, currently set at 65,000 visas, with an additional 20,000 for people who have advanced degrees from U.S. institutions. When demand exceeds these caps, USCIS conducts a lottery to select petitions for processing.
The employer must register each potential H-1B candidate during the registration period (typically in March) and pay the registration fee. If selected in the lottery, the employer then proceeds with filing the complete H-1B petition.
5. Responding to Requests for Evidence
It’s increasingly common for USCIS to issue RFEs asking for additional documentation to support the petition, and employers are better able to react to those ASAP. Sometimes, they might need a hand from their legal team.
6. Ongoing Compliance and Maintenance
The employer’s responsibilities continue even after the visa is approved:
– Maintaining up-to-date records: Employers must keep detailed records related to their visas.
– Material changes: If there are significant changes to the employment (location, duties, salary, etc.), the employer may need to file an amended petition.
– Public access file: Employers must maintain a public access file for each H-1B worker, which includes the LCA, wage information, and evidence of the wage determination.
Financial Responsibilities for Employers
Sponsoring an H-1B visa involves significant financial commitments:
Filing fees: Basic filing fees for Form I-129, plus the American Competitiveness and Workforce Improvement Act (ACWIA) fee, which varies based on company size.
Fraud prevention and detection fee: A mandatory fee for initial H-1B petitions and when changing employers.
Premium processing fee: Optional but often used to expedite processing.
Legal fees: Many employers work with immigration attorneys to navigate the complex process.
Note that certain fees must legally be paid by the employer and cannot be passed on to the employee, including the ACWIA fee and the fraud prevention fee.
Employer Compliance Risks and Audits
Employers who sponsor H-1B workers face potential audits from multiple government agencies:
– The Department of Labor can conduct random audits to verify LCA compliance.
– USCIS may need to confirm the information provided in the petition.
– Immigration and Customs Enforcement (ICE) can review I-9 employment eligibility verification forms.
Non-compliance can result in fines, debarment from immigration programs, and, in severe cases, criminal charges.
Supporting the H-1B Employee Beyond the Paperwork
Beyond the legal requirements, successful employers recognize that sponsoring an H-1B worker involves welcoming someone who may be adjusting to a new country and culture.
Thoughtful employers often provide:
- Assistance with relocation.
- Cultural orientation.
- Guidance on setting up essentials like banking, housing, and healthcare.
- Clear communication about visa limitations and requirements.
- Support for family members who may accompany the H-1B worker.
Termination Responsibilities
If employment ends before the visa period expires, employers have additional obligations:
- Notifying USCIS that the employment relationship has ended.
- Offering to pay for the employee’s return transportation to their last country of residence.
- Ensuring proper documentation of the termination.
The Employer’s Role in Green Card Sponsorship
Many H-1B holders ultimately seek permanent residency through employer sponsorship. While not required, many employers choose to support this process, which involves:
– Labor certification (PERM process).
– Filing an immigrant petition (Form I-140).
– Supporting the employee through adjustment of status or consular processing.
This demonstrates a longer-term commitment to the employee and can be a powerful retention tool.
Building a Successful Partnership
The employer-employee relationship in H-1B sponsorship works best when viewed as a partnership. Successful outcomes depend on several key factors working in harmony.
- Try to maintain clear communication at all times and set boundaries regarding your expectations and responsibilities.
- Keeping it transparent regarding the entire process and potential challenges helps prevent misunderstandings and builds trust.
- A mutual commitment to compliance with all regulations ensures the legal integrity of the sponsorship arrangement.
- Also, recognize the value you and your employees bring to the table. This helps build respect and appreciation, which are crucial for a nice long relationship.
Final Thoughts
The H-1B visa is a game changer for both employer and employee.
The employer gets a chance to find the perfect candidate without restricting the position to a local pool. Imagine you have the power and opportunity to hire anyone from the world. That’s incredibly profitable and awesome for any company. And for the employee, it’s an opportunity to work in the U.S., bringing the special skill to where it’s needed and paid for properly.