Teresa Cai

It is 4:00 p.m. and you get a call from a department manager: he has an “all right” job candidate, but the candidate says he needs H1B sponsorship as he is a foreign national and is not authorized to work in the U.S. without H1B sponsorship. The manager wants to know: What are involved in H1B sponsorship? How soon can the candidate start working for your company? He needs the answers before the end of the day so that he can make a decision before the candidate accepts another offer.

This happens quite often in today’s HR workplace, especially if you work in the technology industries. More and more job candidates are requesting for H1B sponsorship. Dealing with immigration issues is becoming an increasingly important part of HR responsibilities.

H1B is the name for a foreign national’s work authorization in the U.S sponsored by a U.S. employer. To sponsor H1B, the employer must file documentation with the Department of Labor and Department of Homeland Security, showing that the job and the candidate qualify for H1B and that the wage offered to the candidate is above the required rate.

What Jobs Qualify for H1B?

Only “specialty occupation” jobs qualify for H1B. Generally, this means an occupation which, according to industry standard, normally requires at least a bachelor’s or higher degree for entry. Traditionally, the government has recognized the following jobs as H1B qualifying: engineers (all kinds); computer professionals (such as hardware engineer, software engineer, programmer, systems analyst, network analyst, database analyst, system administrator, etc.); scientific researchers (such as physicist, chemist, biochemist, biologist, etc.); architectural and landscape architectural professionals (including unlicensed intern and designer); business professionals (such as accountant, financial analyst, market analyst, management analyst, operations analyst, etc.); writers and editors; urban planning jobs; social workers; teachers; etc.

What Candidates Qualify for H1B?

The candidate must have at least a bachelor’s in a field related to the job (the degree can be obtained outside the U.S.) or equivalent of a bachelor’s through combination of education, training, and/or work experience. Generally, if the person does not have a bachelor’s in the related field, for each year of college level education the person lacks, three years of specialized training and/or work experience must be demonstrated.

What is the Wage Requirement for H1B

The wage offered to the H1B person must be at or above the higher of the following two: the “prevailing wage” in the area for similar job, or, the “actual wage” the same employer offers to similarly employed workers. Generally, it is not a problem that the offered wage is at or above the “actual wage” the same employer offers to similarly employed workers because an employer always makes the offer based on its pay scale. The tricky thing is to find out what the “prevailing wage” is.

“Prevailing wage” is to be determined based on the job site location and on the job description. Generally, the government uses the OES wage data for prevailing wage determination. You can make a quick run of the figures online at http://www.flcdatacenter.com/OesWizardStart.aspx

What is the Time Period for H1B?

H1B is employer specific, that is, the person can only work for the employer who filed H1B petition for him/her. If the person wants to change employer, then the new employer needs to file H1B for this person.

An employer’s approved H1B is usually valid for three years and is renewable. However, regardless of the number of employers a person works, he/she can only be on H1B status for a total period of six years, unless qualifying for further extension by virtue of green card application. Thus, when hiring a prospective H1B, you want to make sure that he/she has not used up a big chunk of the six-year maximum time that he/she has for H1B so that you can have him/her for a good period of time and you can have time to start green card application for him/her.

A common concern is: if the H1B is approved by the government for a three year period, will the “at-will” nature of the employment be affected? Rest assured, the H1B validity period approved by the government is by no means a requirement that the employer has to employ the H1B person for that period. Rather, it is just a permission from the government that the employer can employ the person during that period of time. Neither the employer nor the H1B employee is restricted from terminating the employment for legal reasons during the H1B validity period.

How Soon Can an H1B Person Start Working?

If the person is currently on H1B with another employer, generally you can start employing the person once you get your H1B filing receipt notice from the government. This usually takes about 2 weeks after you start the process.

If the person is not currently on H1B, you can not start to employ the person on H1B until the H1B is approved. This may be a problem at this time because currently there is no H1B quota available and thus no change of status to H1B can go through. Some new graduates may have a valid employment authorization card, in which case you can employ him/her right away. But when the employment authorization validity period ends, you would need to have an approved H1B in order to continue employing the person.

So now you know what you need to find out when you get that call from your department manager about H1B sponsorship: what the offered job is; what kind of degree the candidate has; whether the offered salary meets the H1B salary requirement; what kind of status the candidate is currently on and if currently on H1B, how long he/she has been on H1B. The manager would be surprised to see how much you know about this.