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IMMIGRATION BASICS: WHAT TO DO WHEN THE “RIGHT” CANDIDATE REQUIRES SPONSORSHIP

Employment-based immigration can be challenging for employers. However, in this global marketplace, it is inevitable that eventually the “right” candidate for a position will require some form of employment sponsorship. Rather than risk losing this perfect candidate, it behooves employers to have some basic idea of the processes involved in sponsorship. Nearly all immigration-based employment begins with a temporary visa. The most common, and most publicized, temporary visa is the H-1B. This type of visa is reserved for jobs that require a bachelors degree or higher. Annually, there are 65,000 H-1B’s available. When the economy is good, these visas can be used up within a week. In the most recent years, the visas have lasted through December and even into the new year. Hiring an H-1B is a simple process. The most common scenario involves hiring a new employee who is already in the U.S. on an H-1B. In this case, the employer simply needs to transfer the H-1B visa from the old employer. This can be accomplished within two weeks, which coordinates well with the typical two-week notice. To transfer the visa, an employer needs to file a Labor Condition Application (LCA) with the Department of Labor (DOL) asking the DOL to certify the position being offered as proper for an H-1B employee. Once filed, the LCA takes five to seven business days to certify. Once certified, the LCA gets filed with the H-1B petition and other forms. The moment the full packet of documents gets placed in a mailbox or is picked up by an overnight carrier, the employee can begin working for the new employer. United States Citizenship and Immigration Services (USCIS) is currently taking about four months to review these applications, but, the employee can start with the new employer upon mailing and does not have to wait for USCIS to finish reviewing the H-1B packet. The only difference between transferring an H-1B and hiring a new H-1B is in the timing. When an employee is beginning their first H-1B, they must wait until USCIS approves the H-1B petition. However, there is a way to significantly reduce the time USCIS takes to do this. A process called “Premium Processing” is available for an additional fee. When an employer files a petition requesting Premium Processing, USCIS is required to adjudicate the petition within fifteen calendar days. Therefore, , a new employee can obtain an H-1B within two to four weeks. The cost of the H-1B process is a reasonable one. An employer seeking to hire an H-1B employee can transfer or get a new H-1B visa issued for under $5,000, unless there are extenuating circumstances, which includes attorney’s fees. The costs go up slightly for Premium Processing. Importantly, the employer is required to bear the entire cost of the visa. Moreover, the cost paid to obtain the visa cannot be used to reduce the employee’s salary. The H-1B is available to employees for a total of six years. Therefore, if an employer hires someone who has been in the U.S. on an H-1B for four years, the employer needs to be aware that the employee only has two years of H-1B status left.  The employer can extend the six-years of H-1B status by sponsoring the employee for a green card. The employee is permitted to stay on an H-1B visa beyond the six year period while the green card is in progress, which can take anywhere from one to twelve years. Hiring a foreign national can be a stress-free process. Because the H-1B is a temporary visa, USCIS generally does not give petitions the level of scrutiny that they give applications for permanent visas. The costs are bearable for almost any employer and the time frame for hiring an H-1B employee is short. When the “right” candidate requires sponsorship, hiring them should not pose a burden on employers.

 

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