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IMMIGRATION REFORM

How to Obtain an H1B Visa
 

As 2010 nears its end, the number of available H-1B visas is dwindling. Here's how to go about some last-minute shopping for one.
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Unfortunately, unemployment numbers remain high in the U.S. The truth is, however, that not every worker out there has the skills you need to fuel the growth of your business – which means you might need to expand your search to other markets to find them. "It's true that while there is a downturn in the economy, many employers are still unable to find people that are qualified to perform a particular specialized occupation," says Jennifer Brill, an immigration lawyer in San Francisco.

For example, Laura Grimmer needed to find an employee with specific technical expertise for her business-to-business public relations firm, Articulate Communications, in New York City. The problem was, she couldn't find the right person. "We need employees with very specific skills and interests who can marry marketing, PR and communications with technology, enterprise-class software and vertical markets like financial services, pharmaceutical and digital media," Grimmer says. "While these kinds of workers may be clustered in parts of the country like Boston and San Francisco, it's actually been quite difficult for us to find people in the New York area that meet our requirements and who want to work at a small firm."

That's why Grimmer decided to look outside the country – to Turkey, in fact – to find the perfect fit.

But before she could go about hiring a foreign worker, she needed to obtain something called an H-1B visa, which is essentially a permission slip from the U.S. Bureau Citizenships and Immigration Services (USCIS), the agency that oversees immigration, allowing her to hire that employee.

While most entrepreneurs might be intimidated by what sounds like yet another government application process fraught with red tape, Grimmer says it's not really as bad as you might think. "I thought it would be an arduous, painful and frightfully expensive process, but it turned out to be fairly straightforward and simple," she says, adding that your first step should be to hire the services of an experienced immigration lawyer who can walk you through the process.

The government also has an annual cap of 65,000 visas, with an additional 20,000 visas available to individuals holding a master's or higher degree from a U.S. institution, says Taufiq Choudhury, an immigration lawyer in New York City. As of mid-December 2010, there were reportedly 62,500 applications filed, meaning that there are only 2,500 openings remaining for 2011.

If you're interested in filling a job opening by landing one of those final spots and hiring a talented foreign worker for your business, consider educating yourself via a new tool recently unveiled by the U.S. Department of Labor to help employers understand how to comply with requirements under the H-1B visa program.

Dubbed an online "advisor," the site describes the program's standards and provides detailed information about employers' and workers' rights and responsibilities as well as details about notification requirements, monetary issues, worksite issues, recordkeeping, worker protections and enforcement.

What follows is an additional summary of the process to help get you started.
 
How to Obtain an H1B Visa: What's an H-1B?

H-1B visas, as opposed to permanent visas or "green cards," are temporary, initially granted for a period of up to three years, to workers in "specialty occupations" - positions requiring at least a bachelor's degree in a specific or related field. According to federal law, applications for such visas are also "site specific," meaning that a foreign worker can only work for the company who is submitting the application for the visa (pending separate approval by the USCIS), Brill says.

Dig Deeper: The Immigrant Advantage

How to Obtain an H1B Visa: How Do You Get an H1-B?

Obtaining the actual H1-B visa is basically a three-step process, says Meaghan Touhey-Kay, an immigration lawyer in Hawthorne, New Jersey.

1.    The first step involves both confirming that the position qualifies as a specialty occupation and that the candidate has the appropriate degree to perform it. With that in place, you'll next need to determine the Prevailing Wage Determination (PWD), basically the fair market wage for your open position, a figure that can be obtained through an online wage library or by submitting a request to the Department of Labor's National Prevailing Wage Center. In total, this process can take up to three weeks, says Touhey-Kay.

2.    Once the PWD is obtained, the sponsoring company files a Labor Certification Application (LCA), which provides information about the sponsoring company, as well as information on wages and work benefits, to the Department of Labor. This can take from seven days to three weeks to obtain.

NOTE: It's also critical to note that on or before the time that you submit the LCA, the employer must post a notice in two conspicuous places for 10 days on each work place site where the employee will be employed, says Ronald Shapiro, an immigration lawyer in Northbrook, Illinois. A misconception that many business owners have, though, is that they have to post the position to internal or domestic candidates before looking to secure a visa. Not so, says Shapiro, even if you run a union shop. "If the job position for which the employee is being sponsored is a position for which there is a union, the notice must be provided to the union's bargaining agent," he says.

3.    Once the LCA is certified, the company submits its application, which is called Form I-129, to the USCIS for approval. The package will also include items such as the employment agreement and the documentation supporting the applicant's education and experience such as a resume and training certificates; the information about why a Bachelor's or higher degree is required to perform the job position; and a summary of the duties that the employee will be performing in the U.S. Although it is not always required, if the sponsoring employer is a small company (less than 10 employees), you may also need to provide proof that the you have the need for employing a foreign worker as well as the ability to pay the employee's wages, says Shapiro.

Dig Deeper: New Start-up Visa Promises: Create Jobs, Get a Green Card

How to Obtain an H1B Visa: Summary of Costs

Once a company submits its application to the USCIS, there is no definite timetable for getting approval, though estimates range from about four to five months. That timeline for approval can be cut to 15 business days, however, if a company is willing to pay the $1,225 fee to access the agency's premium processing service. Once the USCIS gives it approval, the job applicant then takes the resulting paperwork to a U.S. consulate to obtain his or her visa. 

As far as the fees associated with the application process, they break down as follows:

  • Basic filing fee $325
  • If the employer has less than 25 employees, they need to pay a $750 training and education fee; with more than 25 employees, the fee jumps to $1,500.
  • All applicants must pay a $500 fraud prevention fee.
  • If an employer has more than 50 workers and more than 50 percent of them are on H1-B status, there is an additional $2,000 fee.


In summary, then, companies can expect to pay upwards of $2,700 plus legal fees for each application – something that can sometimes give entrepreneurs sticker shock since companies are expected to foot the bill. But, there can be room for negotiation sometimes, where the company and the applicant agree to split some of the legal costs – something that Grimmer from Articulate took advantage of. "The fact that my employee was willing to split the cost and do much of the legwork on the visa was a big reason why I decided to take a chance," she says.

Dig Deeper: How do I get an H1b visa for an employee?

 

Last updated: Dec 17, 2010

DARREN DAHL is a contributing editor at Inc. Magazine, which he has written for since 2004. He also works as a collaborative writer and editor and has partnered with several high-profile authors. Dahl lives in Asheville, NC.




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