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7 Facts HR Needs to Know When Sponsoring an H-1B Employee

Dec 6, 2023

An H-1B interview

The H-1B visa program allows U.S. employers to hire foreign workers with specialized skills. HR professionals play a crucial role in the H-1B sponsorship process. In this article, we’ll delve into seven facts HR needs to know when sponsoring an H-1B employee.

1. The H-1B Cap

The annual cap for H-1B visas is set at 65,000, with an additional 20,000 reserved for candidates holding a Master’s Degree or Ph.D. from an accredited American college or university.

2. Exemption from the Cap for Certain Positions

Certain specialty positions filled by H-1B employees may be exempt from the annual cap. Nonprofits, universities, governmental research facilities, and some physicians meeting USCIS waivers may not be subject to the cap.

3. Increased Scrutiny for Consulting Companies

Consulting firms face increased scrutiny from U.S. Citizenship and Immigration Services (USCIS). All work sites must be listed in the H-1B petition, and Labor Certification Applications (LCAs) must be filed for job applications. Failure to maintain records of contracts, purchase orders, or work statements with the end client may result in a denied petition.

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4. Extension Process

To extend the stay of an H-1B employee beyond the initial 6 years, an Alien Labor Certification application should be filed one year before expiration. Extensions can be obtained for 1 or 3 years, provided an I-140 petition for permanent residency was approved before the end of the initial 6 years.

5. April 1st Filing Deadline

H-1B applications can be submitted starting April 1 each year. Transfer applications for workers with prior H-1B visas can be submitted at any time, but are subject to the annual quota. Exceptions include submissions by nonprofit research organizations, educational institutions, or those seeking a physician with a USCIS waiver. Only one application per worker per year is allowed, although certification can be sought for multiple workers in a single occupation as listed on the LCA.

6. LCA and Wage Requirements

Before filing an H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the Department of Labor. This document attests to the employer’s compliance with prevailing wage requirements and ensures that the H-1B employee receives a salary comparable to U.S. workers in similar positions.

7. Dependent and Non-Dependent Employers

HR professionals should understand the distinction between dependent and non-dependent employers in the context of H-1B sponsorship. If a company has a significant number of H-1B employees compared to its overall workforce, it may be classified as H-1B dependent, subjecting it to additional attestation requirements. Being aware of this classification helps HR navigate potential challenges associated with dependency status.

Navigating the H-1B sponsorship process requires HR professionals to be well-versed in the nuances of immigration law. By understanding these seven crucial facts, HR can play a pivotal role in successfully securing and managing H-1B visas for their employees, contributing to the growth and diversity of the U.S. workforce.