Get Geared for the H1B Season

H-1B visa is utilized by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields. As one of the primary requisites of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) requires U.S. employers to meet specific labor conditions. This is to ensure that American workers are not adversely impacted by the employment of a foreign worker and also that the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

The current law has a quota of only 65,000 H-1B visas available each year. When the USCIS believes that it has received sufficient number of applications to reach the particular year's cap, it stops receiving H-1B applications. It has been interesting to note how the numbers have just vanished over the past few years even before the start of the actual fiscal year for which the filings are done. For FY2005, the cap was reached on October 1, 2004. For FY2006 the cap was reached much sooner, on August 10, 2005, and last year (i.e. for FY2007), the numbers were over by 26^th May 2006. The estimation is that the cap would reach much before for this fiscal year.

Lack of proper planning and on-time filing for an employee before the cap is reached, can result in you having to wait until the next year to file an H-1B petition. In such cases employers will only be left with the option to evaluate and utilize alternatives to the H-1B category, which may be used to 'bridge the cap' until October 1^st if you have missed the H-1B bus for that particular year.

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. The purpose of the petition could be extension of stay, change in the terms of current employment, change of employers by current H-1B workers and H-1B workers seeking to work concurrently in a second H-1B position.

Unless there is a change in law, USCIS allocates 20,000 cap exemptions annually for persons with advanced U.S. degrees and those seeking jobs in institutions of higher education or related or affiliated non-profit entities, or at non-profit research organizations or governmental research organizations. H-1B cap exemptions depend on an employer fitting within a particular category and fulfilling the requisites set forth under the law. An employer isn’t required to apply for the exemption with the USCIS or any other government agency.

With the Democrat-controlled Congress taking office last week and H-1B visas still being the focal point of debate, the anticipated rat race will stall when the cap will be reached presumably in about a month. We at VisaPro wanted to get a first hand insight into the H-1B back-end preparation that has gathered full momentum in companies from a one-man start-up firm to a multinational company. Following is how medium to large sized companies perceive the H-1B cap:

Large sized companies: The larger companies processing 50 to100 H-1Bs every year are looking towards having a better strategy planned up this year as a precautionary measure to surpass the rejections for their petitions last year. The companies plan to start all their paper work by February in order to make sure to post the petition to the USCIS well before time. The plan is outlined in such a manner that the petition gets filed on 1^st of April 2007. The companies see an absolute need to ascertain their staffing requirements and plan the filing of H-1B petitions for employees who they need to employ during the next fiscal year. Many have seeked assistance from experienced attorneys or law firms to ensure they don’t miss the H-1B bandwagon yet again!

Medium sized companies: The medium sized companies process nearly 10 to15 H-1B visas every year. Ineffective planning and late filing was the prime cause for these companies not receiving the required H-1B visas. Many of the companies filed the petitions in 1^st week of June and hence, lost out on the H-1Bs. We were made to understand by them that this year their strategy would be better and much more efficient. The companies plan to start preparing for the H-1B visas and also seek help from law firms, if necessary, in understanding the document requisites and visa procedure. However, we observed that small to medium companies and start-ups didn’t seem to be getting jittery about the H-1B cap being reached in less than a month as predicted this time.

With the H-1B issues involved, one does need to plan for the next fiscal year in advance. There are several potential immigration strategies to survive the H-1B cap and one of them is filing as soon as the quota opens. Employers need to devise a suitable strategy for hiring a foreign national at least six to eight months in advance and plan the filing accordingly. This may still not be a solution when the need of a foreign national in the U.S. is immediate and emergent. For a detail on alternative visa options for those who might still be left out this year, please review our Immigration Article on H-1B Cap.

VisaPro has successfully handled H-1B petitions for a variety of clients ranging from small companies to multinational firms. Please feel free to contact us to discuss the immigration needs of your organization and help you effectively with your H-1B processing. Our experienced Immigration Attorneys could help you devise an appropriate strategy for employing foreign nationals or transferring employees from your overseas offices to your U.S. entity by filing for an H-1B.

Raj becomes a successful consultant in the USA

Raj is a database architect whose services are in great demand. Raj is currently employed by a small consulting firm in the United States where he works under a work visa on projects that client companies all over the U.S. outsource to his employer. Raj’s work is so well respected by the project managers at client companies that many of them specifically ask that the consulting firm assign Raj to work on their projects.

Although the consulting firm pays a good salary to Raj, he knows that he could earn far more money as a Solo W-2. He is confident that he could market himself effectively to American companies based on the strength of his reputation – there are so many project managers in the U.S. who already know the quality of his work, and who would either hire him directly as a consultant or write strong letters of recommendation on his behalf to colleagues in other companies.

There are, however, several obstacles to working as an independent consultant. For one, as a foreign national Raj would have to work through a third-party employer, such as a temp agency, which might be willing to sponsor his H-1B visa.

Raj spends a lot of time participating in online discussion groups where foreign nationals chat about working in the United States. From these discussions, Raj has learned that if the sponsoring employer is a consulting firm or contract employment agency he should expect to earn less than one-half of the money that the client pays for his services.

It just seemed unreasonable to Raj that he should give up so much money to a company that is only serving as his employer “for the record” and which does little more than invoice the clients he finds on his own.

Raj raised this issue one day in an online discussion group. Most of the replies told him that as a guest worker in the United States he should be grateful for whatever the temp agency was willing to pay him. At the least, it was more than he could earn doing the same work in India. One of the discussion participants, however, suggested that Raj investigate a Solo W-2 service.

Employers in the U.S. report wages paid to an employee on IRS Form W-2. Employees attach Form W-2 to their income tax return to document their earnings. For this reason, employees are often referred to as “W-2s”.

A Solo W-2 service company employs professionals, negotiates and finalizes the client contracts, offers a superb employee benefits package, manages the work product, and provides all other administrative services. A Solo W-2 employer is especially convenient for a self-reliant expert such as Raj because the service will sponsor his work visa and then support as he moves from project to project and client to client.

Solo W-2 services are inexpensive compared with typical consulting firms and temp agencies because they do not incur the overhead costs associated with sourcing talent and selling that expertise to their clients for projects.

Raj entered the keywords <Solo W-2> and <Solo W-2, work visa> into his favorite search engine. His search located a Solo W-2 service provider that was well equipped to sponsor his visa on the condition that Raj take full responsibility to market his expertise directly to clients and that he charge the full market rate for his expert services.

The Solo W-2 service provider also required that Raj already have a client project lined up before it would begin the application process to transfer the H-1B visa. Raj began immediately to contact project managers in companies. When Raj had secured a client with a project, he contacted the Solo W-2 service provider and began the visa transfer process. His new Solo W-2 employer said he could start working on the client’s project as soon as the USCIS accepted the application to transfer his visa.

Although the visa transfer process may take only one week, Raj could hardly wait to realize his dream of working in the United States on projects of his interest as a successful consultant.

The above article has been brought to you by Dr. James R. Ziegler, Executive Director, P.A.C.E. The opinions expressed in the above article are entirely those of the author and not necessarily those of VisaPro, and there is no implied endorsement by VisaPro of any advice or strategy.

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Get Geared for the H1B Season

Raj becomes a successful consultant in the USA