How Employers Can Hire an H-1B Worker Who Is Already in the U.S.

U.S. Employers can hire high skilled or professional workers with H-1B Visas. Here's how it works.

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For U.S. companies that need highly skilled or professional (degreed) workers, some of the most likely candidates may be foreign nationals who are in the U.S. on a visa or graduating from a U.S. college or university. Your company may have even employed a particular worker, perhaps part time, as a student. Assuming the job and worker meet the criteria described in “H-1B Visa to the U.S.: Who Qualifies?,” sponsoring the worker for H-1B status may be a worthwhile endeavor.

As an initial note of clarification, you would be sponsoring to change or extend the worker's immigration "status," which typically is reflected on the I-94 Arrival/Departure Record or by a handwritten note in the passport next to an entry date stamp. In contrast, a "visa" is merely an entry document that the U.S. Consulate abroad affixes to the passport and that allows the foreign national to apply to enter the United States. Once in the U.S., the visa is less important. Therefore, because this article relates to hiring an H-1B worker who already is in the United States, we will be referring to the worker's immigration status rather than to a “visa.”

Procedural Steps Toward Hiring an H-1B Worker Who Is Already in the U.S.

There are a few steps to the immigration process to hire a foreign national who is in the U.S. within the H-1B visa category.

As the employer, you first must establish the prevailing wage for the position, which is the statistical average wage for workers in the job in the same area. See “H-1B Employers: What Wage Must You Pay?“. Next, you need to file a "Labor Condition Application" with the U.S. Department of Labor to verify that your proposed employment of the H-1B worker meets certain wage and working condition requirements. Finally, you need to prepare and file a petition on Form I-129 with United States Citizenship and Immigration Services (USCIS).

Assuming the prospective employee is in the U.S. in lawful status – most likely because the person properly entered the U.S. with a visa and is maintaining the status granted – the person will be able to start working for the employer upon approval of the H-1B petition. For H-1B workers changing from one H-1B employer to another, see "H-1B Portability - How Workers Can Change Employers.”

If the person is in the U.S. without lawful status, such as someone who did not see an immigration officer upon entry, or who entered with a visa but since has overstayed the authorized period of stay, it’s a different story. When an employer files an I-129 petition for an H-1B worker who is in the United States, it is asking USCIS to change and/or extend the worker’s immigration status. This means that there must be a lawful status to change and/or extend. It’s legally impossible to change or extend the status of someone who has no status. In these situations, consulting an immigration attorney can help determine whether other possibilities exist.

The following provides a brief summary of the H-1B petition requirements to sponsor someone in the United States.

Preparing the H-1B Petition (Form I-129)

To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status. Depending upon the person's current status, the employer asks USCIS either to extend the person's status (that is, extend H-1B status) or to change and extend the person's status (in other words, change status from F-1 student (or another visa category) to H-1B worker and extend the period of the worker’s authorized stay in the U.S.).

Below is the list of materials that the employer typically must include with the petition:

  • Forms I-129 Petition for a Nonimmigrant Worker, H Classification Supplement to Form I-129, and H-1B Data Collection and Filing Fee Exemption Supplement. Both the I-129 Petition and H Supplement require signatures. The Data Collection form does not require a signature.
  • Support letter from the employer confirming the job offer to the foreign worker and explaining the terms and conditions of the proposed employment.
  • Copies of the foreign worker’s educational degrees and transcripts. If the degree and transcript are from another country, include a U.S. equivalency evaluation report.
  • Copies of the foreign worker's identification and current immigration documents, as applicable (passport, visa, I-94 Departure Record, USCIS Forms I-797 for prior applications or petitions, SEVIS Form I-20 for F-1 students, etc.).
  • Documentation to show that the foreign worker/prospective employee is maintaining lawful status in the U.S., such as transcripts for F-1 students or paychecks for H-1B workers.
  • Base Filing Fee ($325 as of 2013; see www.uscis.gov for current fees, as USCIS changes its fees from time to time).
  • Fraud Prevention and Detection Fee: $500 as of 2013.
  • ACWIA Fee, unless an exemption applies: The 2013 fees were $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees.
  • Public Law 111-230 Fee (required for employers that have 50 or more employees in the U.S., more than 50% of whom are in the U.S. in H-1B or L status): $2,000. This fee is set to expire October 2, 2014.
  • Certified Labor Condition Application ("LCA") from the U.S. Department of Labor (DOL). As mentioned above, you need to determine the prevailing wage and then file the LCA by using the Department of Labor's online portal, http://icert.doleta.gov/. It usually takes a week to receive the certified LCA, which the DOL sends via email.

The employer must mail the petition to USCIS. The processing time usually is two to four months.

For an enhanced fee of $1,225 (as of 2013), USCIS guarantees an initial processing time of 15 calendar days. If USCIS asks for additional documents, a new 15-day clock begins from the time USCIS receives your response.

Keep in mind that there is an annual quota of H-1B visas that may impact when you can file your petition. If the H-1B candidate you're planning to hire already has H-1B status and previously was counted against a prior year's quota, you can file your petition any time. If the candidate is subject to the quota (as are most F-1 students seeking to change status or people in H-1B status for employment at a college or university), you will need to review the current fiscal year's filings to determine whether any visas remain.

When the Worker Can Begin Employment

In most cases, the prospective employee will be authorized to start working for you on the effective date of the approved H-1B petition. See "H-1B Portability - How Workers Can Change Employers” for information on the start date for someone who currently has H-1B status for employment with another organization. If the worker is currently in F-1 student status, he or she already may be authorized to work for you based upon student work authorization called Optional Practical Training (OPT). For more information on how changing status from F-1 to H-1B affects such workers' employment authorization, see "Relief for Students Facing the H-1B/F-1 Cap Gap."

Employment start dates are important to maintaining lawful immigration status. By consulting qualified immigration counsel, employers can help their prospective employees maintain lawful status while planning an appropriate start date.

 

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