So the new immigration bill would increase visas for high tech jobs. How will this help us again?

[WilmywoodNCparalegal]

46. Response - lengthy

First of all, I've been working in U.S. immigration law for more than 13 years. This is more than theory - it's plenty of practice, I assure you. This kind of stuff is what I do every day. I have worked in law firms and I have worked in corporate settings. I currently work in a corporate setting so I am well aware of corporate policies and hiring practices. I am the only person who oversees immigration for a large company with over 70,000 employees.

H-1B employees transfer to/from employers all the time. H-1B workers are not cheap. It is actually very expensive for any business to hire an H-1B worker. Legal fees alone are at least $2,500. Filing fees owed to the U.S. government are $2,325 for many employers (less for smaller employers - more for H-1B-dependent employers). So, we are talking about nearly $5,800 that an employer must pay to have an H-1B worker.

At all employers I have worked with or where I am currently working, we have several H-1B employees who have joined us and/or who have left us. No one has been treated 'badly.' Since we are heavily unionized, I'm sure such a grievance would have been heard loudly. I have also had to decline job offers in cases where our salary was below the prevailing wage and the department managers were not able to increase the compensation. I am an immigrant myself and I don't look kindly upon those who take advantage of foreign workers - legal or illegal. I certainly am not going to approve if an employer wants me to commit visa fraud and pay someone less than prevailing wage.

When you file a change of employer H-1B petition for an employee who already has an H-1B with a different employer, the start date will change. For example, Company A petitions for Employee X. Employee X has valid H-1B visa with Company B from 10/01/2010 to 09/30/2013. Company A indicates on the forms a start date of 3/3/2013 and an end date of 3/2/2016. The maximum allotted time in H-1B status is 6 years. Therefore, assuming Employee X's initial date in H-1B status is 10/01/2010, he has until 09/30/2016.

If USCIS approves the petition, then Employee X's validity dates for the H-1B visa will be 3/3/2013-3/2/2016. This is because H-1B visas are employer-dependent. Changing an employer means changing validity dates. Note that USCIS only determines whether a person qualifies for a visa and what the validity dates are according to the visa's parameters. However, the Dept. of State is the sole party that determines whether a person can enter the U.S. (if abroad) and/or receive the full term of the visa. For instance, nationals of China may get a shorter time from DOS, different than what USCIS has approved. This is why the I-94 arrival/departure card which is obtained upon entry to the U.S. is the true determinant of the validity dates, not the visa approval itself.

Also, it is important to note that Employee X is free to begin working with Company A as soon as USCIS receives the petition. Employee X does not have to wait for an approved petition before switching employers. This is known as 'portability.' If the petition were to be ultimately denied (USCIS hardly denies something outright, by the way), then the employee would have to be terminated immediately and Company A would have to pay for return transportation (as per H-1B rules).

Most new H-1B visas will be dependent on the cap set by Congress per fiscal year. FY 2014 begins October 1, 2013. The earliest anyone can file a petition with USCIS is 6 months prior to the start date.

This means anyone who wants to file for a new non-cap-exempt H-1B must do so no later than April 1, 2013. This year, April 1 falls on a Monday. Therefore, this year's deadline is March 29, 2013 (petitions must be postmarked by that date in order to be accepted by USCIS). The idea that it's simpler for an employer to get a new H-1B visa instead of filing a change of employer petition for a current H-1B visa holder is ridiculous. First off, there is the cap issue outlined above. Secondly, the costs are the same. There is no advantage to getting a new H-1B visa instead of filing on behalf of a current H-1B visa holder at all.

One of the biggest misconceptions and errors - also evident in the post above - is that there is a job search for H-1B visas. There is no such thing. Again, I repeat, there is no job ad placed for H-1B visas.

There's no requirement to conduct recruitment for H-1B visas. You are confusing it with the PERM process (also known as labor certification), which is what the infamous video from that law firm is discussing (by the way, most of the stuff they were talking about is now not allowed).

PERM is the first step for most employment-based visa holders who are seeking to become permanent residents of the U.S. (a/k/a 'green card' holders). PERM does not involve USCIS at all - in fact, it only involves the Department of Labor and the state's labor office branches. It includes recruitment provisions that, at a minimum, require a job to be posted in a large circulation newspaper on two consecutive Sundays, in addition to internal postings and a posting on the particular state's employment website.

PERM recruitment is heavily guided by DOL. There are very strict requirements on how the job ad must be written (for example, it cannot be tailored to the foreign national's credentials) and how the review of any resumes/applications received in connection with the recruitment activities must proceed. These are too long to get into and not pertinent to the subject of H-1B visas.

As for misusing job titles to circumvent the prevailing wage requirements of the H-1B, what you point out was a lot easier to do when DOL didn't issue its prevailing wage determination. In those days, unscrupulous employers could have certainly gotten off by doing just that (though that would have been stupid for a variety of reasons, too long to get into).

However, now the things are much different. The DOL reviews the job description and, based on that, provides a prevailing wage report. H-1B rules require that the employer pay at least the prevailing wage as determined by DOL or above.

For all companies I've had the pleasure of working or doing business with, performance standards are uniformly applied, regardless of citizenship or immigration status. Unless an employer wants to get an EEOC charge, it is in the company's best interest to conduct itself properly, ethically and legally. I have never had a situation where a company utilized different standards for visa holders when evaluating performance, raises, bonuses, demotions, terminations, etc.

Many companies that have international business relationships also employ people from all corners of the world and who may have held a visa at some point. In fact, most H-1B visa holders eventually become permanent residents of the U.S. Moreover, H-1B visa holders have to pay the same amount of taxes that all others do.

The only visa holders who are exempted from certain payroll taxes are F/M (students) and J (trainee/intern/au pair/researcher) aliens.