As we approach hiring season for the 2021-2022 school year, you may consider hiring foreign nationals to teach in your schools. While it’s a common practice, there are potential pitfalls to avoid.
If an applicant states or requests visa sponsorship, we recommend you evaluate their current visa status before making an offer of employment. Evaluating their status requires reviewing their visa history and their current status to determine if the employer can sponsor their visa and whether it is a good business decision. At times, the visa holder may be almost out of H-1B visa time (because there is a max of 6-years eligibility generally). If an applicant has spent the past five years in H-1B status, then it may not be a sound business decision to sponsor their sixth year given the time limitations and the cost involved with sponsorship.
Another scenario that comes up often is when the visa holder possesses a J-1 visa. In this situation, it is necessary to determine if the visa holder is subject to section 212(e) of the Immigration and Nationality Act. When a person is here on a J-1 teacher visa, they often have the 212(e) requirement attached to their visa. This requirement means they must return home for 2 years before they can change status (from J-1 to H-1B). In order to not have to return home for 2 years, they can get a waiver of this requirement. A waiver typically takes 6-8 months to obtain. The visa holder should work on getting the waiver on their own without assistance from the employer. Once they obtain it, then they may change status to H-1B.
These are just a couple situations that frequently arise with applicants. You can contact us to help you review an applicant’s status to determine whether or not it is a good business decision to sponsor their H-1B.
The H-1B nonimmigrant visa allows businesses to hire qualified foreign workers on a temporary basis. In order to qualify for an H-1B visa: (1) the job must require a minimum of a bachelor’s degree (or its equivalent) in a specialized field; and (2) the candidate must possess this degree or the equivalent in training and experience. If the foreign worker’s degree was obtained outside the United States, it must typically be translated and evaluated by a third-party educational evaluation service to ensure that it is the equivalent to a U.S. bachelor’s degree. Further, U.S. Citizenship and Immigration Services will generally recognize three years of full- time work experience in a specific field for every year of college missing from the specialized degree program. In other words, if the candidate has no college education, then he or she will need to possess a minimum of twelve years of full-time related work experience to qualify under the H-1B category.
The H-1B petitioning process is comprised of two steps:
- A Labor Condition Application (not to be confused with a Labor Certification Application) is prepared and filed with the Department of Labor, in which the employer attests, among other things, that the H-1B employee will be paid the higher of the prevailing wage or the “actual wage” paid to similar workers at the place of employment; and
- Once the Labor Condition Application is certified by the Department of Labor, the employer may then file an H-1B petition with the U.S. Citizenship and Immigration Services.
H-1B status is initially granted for three years, and may be extended for an additional three years, including all time spent in either H or L status for any employer in the U.S. Extensions past six years may be available in specific situations.
It should be noted that the H-1B visa is a highly sought-after visa. Under current U.S. law, H-1B visa issuance is numerically limited for companies that are cap subject. U.S. Citizenship and Immigration Services received sufficient H-1B visa applications on the first day of filing to exhaust all available visas for the 2019 fiscal year. The first day to file visa petitions, for companies that are subject to the visa cap, is April 1.
In 2017, however, the H-1B rules were changed allowing for more schools to obtain cap exempt status. The school must meet specific eligibility requirements. If the employer qualifies, cap exempt status allows the employer to seek an unlimited number of visas and apply on any day of the year.
Finally, it is important to note that the employer is the H-1B sponsor and therefore is responsible for nearly all the fees and costs associated with the H-1B.
The immigration department at Udall Shumway assists and advises throughout the entire H-1B process and after approval or denial. We evaluate the employee’s eligibility to be sponsored, gather all the documentation needed, and prepare the H-1B petition for submission to USCIS. After approval, we can track the employee’s status and advise you and the employee to ensure compliance with the H-1B rules. We try to make sponsorship as simple as possible for your staff so that you don’t have to become an expert in immigration law.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you or someone you know wishes to seek the help of an experienced immigration attorney call 480-461-5300 or email firstname.lastname@example.org to discuss your rights and options. Udall Shumway PLC is located in Mesa, Arizona and is a full-service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.