H1B Sponsorship: Everything You Need to Know
H1B sponsorship is an important method whereby companies bring foreign-born professionals to the United States to work temporarily.4 min read
2. Important Considerations
3. H1B Cap: What is it?
4. Benefits of Having and Sponsoring H1B Visas
5. Dual Intent Doctrine
6. Application, Offer, and Acceptance
Updated October 26, 2020:
H1B Sponsorship: Everything You Need to Know
H1B sponsorship is an important method whereby companies bring foreign-born professionals to the United States to work temporarily. The employer is responsible for filing the H1B visa petition with the U.S. Immigration Department. Thereafter, if the individual is approved, the employer is responsible for providing the employee with all of the same benefits as other employees, including health benefits, life insurance, stock options, bonuses, etc.
There are several considerations that someone should take into account when seeking H1B sponsorship. These considerations include the following:
- Generally, someone can work in the U.S. for six years with an H1B; however, an extension can be granted in certain circumstances.
- A petition won’t be granted for more than three years.
- If the H1B visa holder’s employment is to be extended, an extension of the visa can be granted.
- If an individual works for the Defense Department, he or she can remain in the U.S. for ten years.
- Self-employed persons cannot apply for an H1B visa.
- Contract employees can apply for an H1B visa.
- If your green card application is pending, as a current H1B visa holder, you can still travel out of the U.S. with no immigration issues.
- H1B visa holders usually must maintain a residence in their home country.
- H1B specialty workers need not maintain a foreign residence.
- H1B visa holders must obtain an H1B for every employer they work for. Therefore, the H1B visa is good for only one specific employer. Employees cannot obtain any other positions or side jobs unless they can obtain additional H1B status with those additional employers, even if the position is temporary or part-time.
H1B Cap: What is it?
The H1B cap is an annual number of visas the U.S. government will issue. Currently, the cap is set at 65,000 plus an additional 20,000 ADE quota. Notably, the cap does not apply to H1B transfers or cap-exempt positions. Some of the positions exempt from the H1B cap include those employed at a nonprofit research company, university, or government entity.
Benefits of Having and Sponsoring H1B Visas
There are many benefits of having an H1B Visa as well as being an employer who sponsors H1B visas, including the following:
- For those employers who are unable to find qualified professionals in the U.S. in their respective area, those companies can find and sponsor non-citizens to work for them.
- Hiring H1B employees can increase your global footprint by hiring people abroad who have additional knowledge in a specific field or the ability to speak other languages.
- H1B visa holders can work for more than one employer; they just have to obtain H1B visas for each employer, which isn’t generally that hard to do as long as the employer is willing to sponsor the employee.
- H1B visa holders can bring spouses and dependent children to the United States under the H4 visa. Such H4 holders can also obtain employment in the United States after certain documentation is filed. In addition, H4 holders will remain in the U.S. for as long as the H1B visa holder remains in the country.
- Under the H1B visa, you can also apply for permanent citizenship under the Dual Intent Doctrine.
- H1B visa holders can remain in the U.S. for up to 3 years, with extensions generally being granted after that period of time is over.
Dual Intent Doctrine
The Dual Intent Doctrine states that certain visas allow non-citizens to remain in the United States even if the non-citizen has intent to remain in the United States. Generally, an H1B visa holder agrees to return home after the H1B expires. Therefore, he agrees to live in the U.S. temporarily until the visa expires. However, under the dual intent doctrine, the H1B visa holder can also apply for citizenship; therefore, he doesn’t have the intent to return home but rather become a permanent citizen of the U.S. For example, take an H1B visa holder who is temporarily living in the United States on his H1B. However, let’s assume that he has a family member who is applying for an immigrant visa petition on his behalf. In this case, the dual intent doctrine would apply.
Application, Offer, and Acceptance
An H1B visa can be filed in two ways: H1B regular processing or H1B premium processing. But keep in mind that it must be the employer who files the application on the employee's behalf. The premium processing method is quicker taking around 15 days, but costs more. The regular processing method can take up to six months.
Other items regarding the H1B sponsorship include:
- The employer can be an individual, partnership, or corporation.
- The application must be specific to a particular job. It cannot be a broad position.
- The visa held by the employee is specific to the employer.
- The employer must pay the employee a certain wage that is based on comparing the prevailing and actual wage. The wage chosen must be the higher of the two.
- The prevailing wage is a number specified by the State Employment Security Agency. All employers wishing to sponsor non-citizens for H1B visas must fill out a form identifying the position, job duties, educational background of the applicant, and the level of skill required for the position. This will help the employer determine which wage must be chosen.
If you would like to learn more about H1B sponsorship, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.