Busting H1B Visa Myths

 Posted on June 02, 2016 in Immigration

Immigration to the U.S., especially on a temporary basis, has always been a difficult and complex endeavor. Perhaps the most easily confused set of rules revolves around the H1B visa, which is designated for foreign workers in ‘specialty’ occupations. Everything from the duration of stay, to the person applying for the visa and beyond has been brought into question; it is imperative that you understand what is true and required if you will be using the H1B visa to come to the United States.

Myth: You can apply for an H1B visa just like any other type of nonimmigrant visa, by completing an application and mailing it in.

False. H1B visas, because they are so in demand, are only available during a specific window, usually beginning on April 1 and ending whenever the cap has been reached. Unlike many nonimmigrant visas, H1Bs are capped by an act of Congress, mostly to restrict the potential adverse effects on U.S. citizen employment rates. Also, in most cases you yourself will not complete the relevant paperwork for an H1B, but rather the U.S. employer with whom you have formed a relationship. You will likely have to provide information, but the law actually requires that the employer be the one to submit the petition.

Myth: H1B workers can be paid less than a U.S. citizen, since they are foreign and will not remain permanently in the company.

False. It is a requirement of the H1B process that the sponsoring employer vows to pay the worker the “prevailing wage” for his or her specialty and location. The point of an H1B visa worker is to bring in people with specialized talents, and despite their foreign citizenship, H1B workers are entitled to be paid wages commensurate with those talents. They have the right to bring actions against their employer if wage fraud or underpayment occurs.

Myth: If you cannot obtain an H1B visa for your worker during the window, you are out of luck until the following fiscal year.

In some cases, this may be true. However, in many others, it is erroneous. It depends on what type of work the person would perform for your company; certain workers will only fit the H1B worker category, but others may be able to apply for another type of visa based on their nationality, their area of expertise, or the position they will hold in your company. For example, a worker who is employed at an international branch of your company may apply for an L1, or if the worker you wish to employ is Canadian or Mexican, he or she may be able to obtain a TN visa, available to professionals in other North American Free Trade Agreement (NAFTA) countries. All may not be lost.

Contact an Illinois Immigration Attorney

Whether you are a prospective employer or an employee wanting to ensure a good job, knowing what is truth and what is fiction can be the difference between success and failure. Enlisting the help of an immigration attorney can ensure that you have your facts straight. The dedicated Chicago, Illinois immigration attorneys at Mevorah & Giglio Law Offices are happy to put our years of experience to work for you. Contact us today via our website or at 630-932-9100 to set up an initial consultation.

Sources:

https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2017-cap-season

http://bls.gov/bls/blswage.htm

https://www.uscis.gov/working-united-states/temporary-workers/tn-nafta-professionals