California Startup Seeking to Hire Foreign Employee on H-1B Visa

What should you know about H-1B visa?

Whether you are a foreign citizen willing to work in the US or an US employer that wants to hire a foreign employee, below are a number of questions our business startup attorneys encounter regarding H-1B visa:

What is an H-1B visa?

H-1B visa allows US employers to hire foreign employees on a temporary basis. Please keep in mind that H-1B visa is a non-immigrant visa and does not bring to Green Card unless the employer files separate employment based petition for the employee during his H-1B stay.

Who can qualify for an H-1B Visa?

The H-1B category is limited to workers coming to US to perform services in a specialty occupation. A specialty occupation is an occupation that requires attainment of a bachelor’s or higher degree in the specific specialty as a minimum requirement for entry into the occupation in US.

Is there an annual limit?

The annual H-1B cap is set at 65,000. There are additional 20,000 spots for foreign citizens with advanced degrees from US universities. However, certain organizations are exempt from the annual cap. Exempt organizations include institutions of higher education or related nonprofit entities, nonprofit research organizations, and governmental research organizations.

What is the period of stay?

The H-1B petition may be approved for an initial maximum three-year period. Petition extensions may be obtained up to additional three years, for a total maximum period of stay of six years. When the employee reaches the limit, he must reside abroad for a period of one year before he can reenter US in the H-1B category.

What are the salary requirements?

Employers who are bringing workers in H-1B category must pay the employees the prevailing wage for the specialty occupation in the territory where the employment will take place. For instance, an Los Angeles Startup company is looking to hire a foreign software developer on H-1B visa basis. The company will have to pay the foreign worker the prevailing wage for software developers in Los Angeles. Information about prevailing wages for all the occupations in all the states can be obtained from the Foreign Labor Certification Data Center Online Wage Library.

If your company is seeking to sponsor an employee for an H-1B and is unfamiliar with the H-1B process, give our Business Startup attorneys a call. They will advise you on the requirements, help you decide what job title would be appropriate for the employee, and guide you through the process. Our attorneys specialize in other types of employment law matters as well.

What are the deadlines for submitting the H-1B petition?

Generally H-1B petitions can be filed up to six months before the intended commencement of employment. For cap purposes, the filing season for a given fiscal year starts on April 1 for employment starting on October 1. The annual cap is usually reached within a few days after April 1, therefore, employers willing to hire H-1B workers must have their H-1B petitions ready by April 1. In order to send the H-1B petition on April 1, employers must plan ahead to fulfill all the procedural requirements and to have all the supporting documents ready.