Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE





The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

  • Article: Challenges and Benefits of Hiring H1B Employees to Your Start-Up Staff. By Sheila Danzig

    Challenges and Benefits of Hiring H1B Employees to Your Start-Up Staff

    by


    The IT industry is growing faster than highly skilled US-born workers can fill all of the new jobs, and the vast majority of H1b visa holders come to the United States every year to fill these positions. In fact, so many apply for H1b Visas each year, even companies like Microsoft are only approved for around half of the H1b Visas they petition for each year.

    Hiring on H1b employees is a great option for established companies as well as start-ups. This particular work Visa allows workers to stay with the company and work for up to six years, with opportunities to pursue pathways towards Green Cards and citizenship. Unlike an F1 work visa, H1b employees will have the time to integrate into the companies and organizations they work for, building a long-term, cohesive workplace.

    If you or your client is looking into hiring H1b employees to work for your start-up company, the petition process may be more complex than if your company was established. This is because start-up companies tend to run on tight budgets. You must be able to prove that you can pay your H1b employee prevailing wages for the position, as well as benefits. Your company must be able to do this without cutting into the salaries of other non-H1b employees, and without loosing overall economic viability. Accurately budgeting for your H1b employee is essential, and you must have the evidence to prove it.

    Many companies resort to cutting corners when just starting up. If you hire an H1b employee, you cannot do this. You also must ensure that your H1b employee’s working conditions are up to standard. To do this, you must file a Labor Condition Application and it must be approved by April 1st. Detailed evidence that your company upholds US labor standards is necessary for this application to be approved so you and your employee or client can move forward on the petition process. This will benefit your company in the long run by ensuring that your business is built on a basis of excellence.

    If you hire a foreign worker, you will most certainly be held to higher standards and have those standards enforced more strictly than if you simply hire US-born workers. However, this will ensure that your company get off to a legitimate start and evolve from a strong, solid foundation. There are simply not enough highly skilled workers who are US citizens to meet the growing job demands of the IT industry, and plenty of brilliant minds from other countries who want to work for you. At the same time, with H1b employees on staff, your company will have strong roots in an international perspective and a global focus. As the business world – particularly the IT world – becomes evermore globally oriented, your company will already be structured for this modern, global industry while established companies and other start-ups that don’t hire H1b workers will have to adapt.

    It is well worth the extra attention to the details of the petition process to start up your new business with H1b employees on your staff.

    Reprinted with permission.


    About The Author

    Sheila Danzig is the Executive Director of CCI TheDegreePeople.com a Foreign Credentials Evaluation Agency. For a no charge analysis of any difficult case, RFEs, Denials, or NOIDs, please go to http://www.ccifree.com/?CodeLWA/ or call 800.771.4723. Mention that you saw this in the ILW article and get 72 hour rush service at no charge.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 3 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      The author states: "You must be able to prove that you can pay your H-1B employee prevailing wages for the position, as well as benefits." This statement appears to be based on confusion between H-1B requirements and employment-based green card requirements.

      In a green card case based on permanent labor certification, for example, evidence of the employer's ability to pay is required by law before an immigrant petition (I-140) can be approved. In the case of an H-1B petition, the employer must offer a salary at the prevailing wage, and must in fact pay that salary after approval, but it will not normally be asked to show evidence of ability to pay (i.e. financial statements, tax returns, payroll records for other employees, etc.) before petition approval.

      At least that has been my experience in 25 years of filing H-1B cases under the current (1990) H-1B law. I have certainly had my share of H-1B RFE's, although only a tiny handful of my H-1B cases have ever been denied, and I have never so far as I can recall been asked for proof of employer ability to pay in an H-1B case.

      What H-1B examiners have often asked for instead, at least in my experience, is evidence that the employer has the ability to offer the candidate employment at an H-1B level. This is quite different from ability to pay a particular salary, because it goes to the question whether the employee will really be working in an H-1B job.

      This has been a very common way of throwing obstacles in the way of small or new companies which are seeking to sponsor people for H-1B. The theory was that a small or new company doesn't really need specialty workers, because people working in a startup or smaller company have to do a variety of tasks, instead of concentrating in a particular specialty. In reality, this usually turned out just to reflect a service bias against smaller companies.

      Usually, whenever I had an RFE with this kind of argument, I would answer that the small or new employer needed to hire a specialty worker so that the company would be able to provide services at a high level of expertise that would enable the company to survive and grow in the future. This argument was almost always successful.

      More recently, I have found that H-1B examiners no longer rely on the "small companies don't need H-1B specialty workers" mantra (or shtick, to use a plainer "Sanskrit" word) as much as they used to. The current USCIS fad, or flavor of the month, in justifying RFE's or even petition denials, is that the offered H-1B position allegedly does not qualify as a specialty occupation.

      As I have written in my own ilw.com posts, H-1B examiners have developed a whole range of strategies, usually based on biased or distorted readings of the OOH (US Labor Department's Occupational Outlook Handbook) in order to argue that a given position is not really a specialty occupation, i.e. one requiring a bachelor degree or equivalent in a specialized field. This also has nothing to do with the prevailing wage issue which Ms. Danzig mentions in her article.

      The above is not to say that prevailing wages are unimportant in H-1B cases. They are quite important - but in a different context from the ability to pay one which Ms. Danzig mentions, and which, as mentioned above, I have rarely if ever encountered in an H-1B case.

      Where prevailing wages more often come into play in an H-1B case is in the tricky question of whether an employer has picked the right prevailing wage in the LCA (Labor Condition Application) form which supports the H-1B petition. I will have more to say about this at another time.

      Again, it is important not to confuse the issue of whether the correct prevailing wage is being offered in an H-1B case with what I have found in my experience to be the much less important issue of showing ability to pay the offered H-1B wage.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Continuing my previous comments, Ms. Danzig also states, with regard to paying the H-1B prevailing wage: "Your company myst be able to do this without cutting into the salaries of other employees, and without loosing [sic - obviously she means "losing"] overall economic viability] Accurately budgeting for your H-1B employee is essential, and you must have the evidence to prove it." (Bold added.)

      Again, with all due respect to the author of the above article, she ia apparently confusing evidence of ability to pay the prevailing wage in H-1B cases, which is rarely if ever required as a condition of having an H-1B petition approved, with ability to pay the prevailing wage in employment-based green card cases, where this can be a critically important issue, one that has been the graveyard of many otherwise approvable permanent labor certification cases.

      But that is not all. Ms. Danzig also states: "Detailed evidence that your company upholds US labor standards is necessary for this [Labor Certification] application to be approved so that you can move forward on the [H=1B] petition process." (Bold Added}.

      Really? In fact, the LCA (Form ETA 9035) does not require any proof that the employer is upholding US labor standards. It only requires an attestation that the employer is upholding such standards. (Of course, the DOL can always investigate after the H-1B petition is approved to make sure that this is the case. But this is quite different from saying that evidence of compliance with these standards is necessary to get an LCA approved. It is not.)

      H-1B petitions present many problems in terms of evidence that is required to obtain an approval. As I have mentioned above, two of the main issues that are likely to attract RFE's or lead to denials are whether the company actually has the ability, from the point of view of the size and nature of its business, to offer a position at an H-1B level of complexity and specialization.

      Another, even more commonly encountered issue these days, at least in my experience, is whether the offered H-1B position qualifies as a specialty occupation, based on the job description. This is an issue which USCIS examiners can, and often do, raise no matter how large or well-established the employer may be or how high the offered salary or solid the ability to pay it is.

      In preparing an H-1B case, it is critically important to focus on the real issues that USCIS and the DOL are concerned with. Contrary to Ms. Danzig's statements, my experience over many years of H-1B filings has been that proof of the ability to pay the prevailing wage and proof of compliance with US labor standards are rarely, if ever, required in order to have an H-1B petition approved. After petition approval, of course, the prevailing wage must be paid and labor standards must be complied with. Otherwise, the employer may have some very big problems.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com
    1. David405's Avatar
      David405 -
      The IT industry is growing faster than highly skilled US-born workers can fill all of the new jobs, and the vast majority of H1b visa holders come to the United States every year to fill these positions. In fact, so many apply for H1b Visas each year, even companies like Microsoft are only approved for around half of the H1b Visas they petition for each year.
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: