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Top 7 H-1B Visa Myths

The H-1B visa is a temporary non-immigrant visa administered by the USCIS. It authorizes U.S. employers to hire foreign professionals for specialty positions. The foreign professional can work and reside in the United States for a specific period of time. The spouse and children of the H-1B visa holder may receive H-4 visas, however, they are not approved to work under the H-4 visa. If the spouse and children wish to work in the United States, each person must obtain a separate working permit.

The H-1B is probably the most popular work visa available to applicants. However due to the many misconceptions, it is matched with challenges for both employees and employers. These are the top 7 myths that we have often heard from the clients.

H-1B Myths:

  1. Myth: The H-1B visa holders can apply to any job
    • Fact: The H-1B may only be applied to specific positions. The job must mandate a highly specialized professional within the fields of: Accounting, Architecture, the Arts, Banking, Biotechnology, Business, Computing, Coding, Engineering, Education, Finance, Healthcare, Marketing, Recruiting, Sales, Scientific Research, Social Science, Telecommunication, and Theology. The applicant is required to hold a minimum of a bachelor’s degree or it’s foreign equivalent. The position must also be approved by the Department of Labor through a Labor Condition Application.
  2. Myth: The H-1B visa is available at anytime
    • Fact: The filing period for the H-1B visa initiates on April 1st of every fiscal year. Applicants may continue filing until the USCIS obtains enough petitions to reach the 65,000 H-1B cap.
  3. Myth: If a foreign professional seeks employment in the United States, the H-1B visa is the only option.
    • Fact: Actually, there are many paths of employment for foreign professionals. There are available visas that are country-specific. For example, the E-3 visa is provided only to Australian workers while the TN visa is specialized towards Canadian and Mexican citizens. The United States also provides the J-1 visa which can allow employers to hire foreign trainees or interns. These are only a few of the possible employment options. There is also the L-1 visa and Employment-based categories that foreign nationals should really look into.
  4. Myth: The 65,000 cap is applicable to all H-1B petitioners.
    • Fact: The annual cap is only applied to new H-1B visas issued. There are also some applicants that may qualify under cap exemption:
      • If the foreign national is already residing in the United States under H-1B status, they will be exempt. The applicant is also exempt if a new employer decides to file a petition on his/her behalf.
      • If the U.S. employer is a government or nonprofit research organization, university, college, technical school, or non-profit affiliate of a post secondary school the applicant is exempt.
      • If the H-1B applicant possess an advanced degree from a United States educational institution he/she will be exempt from the cap. Accepted advanced degrees are masters and beyond. A foreign equivalent will not qualify. However, the applicant has to be counted as one of the initial 20,000 advanced degree holders received by the USCIS.
  5. Myth: The H-1B application is the biggest challenge
    • Fact: Even if the H-1B visa petition is approved for a foreign national, the journey is far from over. The U.S. employer will then be subject to business audits by the USCIS and Department of Labor. A big mistake by employers is that they don’t match the employee’s payroll to visa authorization dates. Some employers add workers to the payroll prior to authorized dates or after which can alarm auditors. Employers are advised to pay close attention to visa dates and maintain organization.
  6. Myth: The U.S. employer has a limit on how many H-1B workers he/she can sponsor.
    • Fact: A U.S. employer may hire as many H-1B workers as he/she wishes. Though, if an employer hires an over abundance of H-1B workers, which is calculated based on a percentage of the total workforce, the employer may be labeled “H-1B dependent.”  The H-1B dependent employer will then be subject to additional screening of recruitment processes. The H-1B dependent employer will also be required to mark “H-1B dependency” on every Labor Certification Application related to H-1B.
  7. Myth:The U.S. employer is required to conduct a a recruiting process prior to the H-1B petition.
    • Fact: Unless a U.S. employer is labeled as H-1B Dependent or a “willful violator”, he/she will not be required to conduct a recruitment process for U.S. workers in advance. This is a myth that stumps almost every employer. Please understand that there are very different requirements between visas and it can be detrimental to confuse them.

The H-1B visa process can be challenging, however, our immigration lawyers are capable of assisting clients with any questions they may have. Our South Florida attorneys are capable of verifying client eligibility and H-1B petition assistance. Don’t let these misconceptions delay your petition. Feel free to contact us for legal representation and assistance with your H-1B visa case.

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