Laws For Opening a Company with an H1B Worker
Though many business owners understand the intention of H1B visas—to provide a legal pathway for businesses to hire foreign workers with specific skills—they may not be familiar with the range of legal considerations for sponsoring H1B workers or understand the regulations and federal laws associated with this complex immigration program. Immigration laws are complicated and rapidly changing, and understanding the nuances of existing regulations is essential to ensuring compliance.
Under federal labor laws, an American employer must first sponsor a foreign worker seeking an H1B visa. The applicant must possess a minimum of a Bachelor’s degree—or equivalent—in their field and have specific degree-related skills that qualify them for a particular U.S. job. The employer is responsible for initiating this process either directly or through an immigration lawyer.
The employer is legally obligated to provide the foreign worker with all of the same benefits, conditions of employment, and wages as they would a U.S. national. This includes providing a salary rate that is higher than the minimum wage, ensuring sufficient working hours (or FT equivalent, for temporary workers), and providing protection from harassment or discrimination because of their immigration status.
The employer is also expected to follow I-9 employment processing rules, such as submitting an I-9 for all new hires, completing a Form I-129 with the USCIS, and filing copies of workers’ labor condition applications with the U.S. Department of Labor before the H1B visa recipient can begin work.
H1B Visa Requirements/Process
The process for obtaining an H1B visa is extensive and it is important to understand the regulations and requirements. First, the employer must submit the appropriate forms to the USCIS, which includes a Labor Condition Application (LCA) and Form I-129 filled out with all the necessary information.
Once those forms are submitted, the employer must then wait for approval before submitting the final application package, which includes documents such as the employee’s college transcripts and work experience, as well as evidence of the employer’s intent to offer the foreign worker the same wages, benefits, and conditions as a U.S. national.
In addition to meeting the standard Labor Condition Application requirements, employers must also show they are not displacing a U.S. worker and that their hiring of the foreign worker does not directly or indirectly discriminate against U.S. applicants.
Pros and Cons of Hiring an H1B Worker
Businesses considering the H1B visa program should carefully weigh the potential advantages and disadvantages of hiring foreign workers. On the plus side, some countries may be able to fill a skills gap in their domestic workforce by hiring foreign nationals who have expertise in certain fields and/or higher levels of education.
Additionally, foreign workers can bring a new and global perspective to their new job and help the company stay up-to-date with the latest trends and innovations.
On the negative side, some critics of the H1B visa program argue that it has been abused by some employers to pay lower wages and create a “second-class” of workers, that foreign workers take jobs away from U.S. citizens, and that some businesses are utilizing the program to outsource labor instead of looking to address the skills gap locally.
Essential Considerations for Opening a Company with an H1B Worker
Businesses looking to hire an H1B worker must thoroughly research the regulations and requirements for doing so, and should employ the services of an experienced immigration attorney familiar with H1B visas to ensure the process is done correctly.
For the foreign worker, the H1B visa is a temporary visa and applying for a green card or permanent resident status can also be a complicated process, depending on the applicant’s circumstances. Before a company sponsors a foreign worker for an H1B visa, they must understand the potential risks associated with potential problems with the applicant obtaining a green card.
Companies should also be aware of potential tax implications of hiring an H1B worker. Depending on the foreign worker’s country of origin, the employer may be required to collect additional taxes, such as income taxes or Social Security taxes, which can add additional costs and complications to the hiring of a foreign worker.
Preparation and Application Costs
Costs can vary significantly depending on the services retained and the complexity of the foreign worker’s individual case. Generally, there are a few basic costs to consider for the application process, including filing fees for the USCIS and additional visa fees, as well as costs associated with hiring a lawyer.
For the employer, there is a $150 fee for each LCA submission which is paid to the Department of Labor, a base fee of $460 for each filing of Forms I-129 and I-907, and additional fees may apply if expedited processing is requested.
Conclusion
Ultimately, employers must understand the legal and financial consequences associated with employing H1B workers. Companies looking to hire an H1B worker must become familiar with the regulations and requirements and should enlist the help of an experienced immigration attorney to help ensure that their H1B application is correct and complete. By following the correct procedures and obtaining the necessary legal assistance, businesses can ensure that the foreign worker has a secure and successful future in the United States.
