The H-1B Visa

Posted: 07/15/18  |  Revised: 11/05/18

The H-1B visa program has been in the news of late, but much of the information is wrong.  Let’s look at some of the facts of the H-1B visa program:

• The H-1B is a non-immigrant (temporary) visa that allows U.S. employers to employ foreign workers in “specialty” occupations.  Specialty occupations are ones that require a bachelor’s degree (or equivalent work experience) in a particular field in order to enter the occupation.  Examples of specialty occupations include Engineer, Attorney, and Accountant.

• The employer must attest under penalty of perjury that H-1B workers will be paid the higher of (1) the wage that similar workers are paid at the worksite or (2) the average wage for individuals in the entire geographic area.  Benefits, and eligibility for benefits (e.g., bonuses, stock options, vacations, insurance, retirement plans), must be offered to the H‑1B worker on the same basis as offered to U.S. workers.  Thus, it is a false myth that H-1B workers brought in as “cheap foreign labor.”

• The “H-1B cap” refers to the maximum of 85,000 new H‑1B petitions that may be approved in each U.S. fiscal year.  Because of this limited number, H-1B cases are put into a lottery each year.

• The “H-1B cap” does not apply to individuals who have previously held H‑1B status and are looking to change employers or extend their H-1B status.

• Foreign nationals may stay in H-1B status for a maximum of 6 years, cumulative of all employers.  Extensions past 6 years are available in some limited circumstances.

• Legal fees and costs associated with obtaining an H‑1B may not be paid by the foreign national; the U.S. Department of Labor views such fees and costs as business expenses that must be borne by the employer.

• Employers are not required to prove that they have attempted to recruit U.S. workers before hiring an H-1B worker.

• The U.S. government commonly investigates H-1B cases by making surprise visits to the worksite of H-1B employees.  Violations of the H-1B laws can lead to fines of $1,000 to $35,000 per violation and could also subject the employer to penalties for perjury.

H-1B visa cases can be quite complicated.  Please contact us if you’d like to set up a consultation to discuss more details and any specific questions you may have about the H-1B program.