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Should California Employers Sponsor Employees for Work Visas?

Posted on in US Immigration Law

Silicon Valley H1-B visa attorney immigrationSuppose you are trying to hire for a position that requires a very specific skill set, and you find a candidate who is perfect in all respects but one: they are not authorized to work in the U.S. Does it make sense to sponsor that person for an H1-B or other type of work visa? Here are three questions you should ask before making that decision:

1. What Is the Company Policy on Sponsorship?

U.S. employers are not required to sponsor employees for immigration. You can freely specify “no sponsorship” in a job ad and refuse to consider people who are not already authorized to work in the US. However, if you choose to consider candidates who require sponsorship, you should have a written company policy and act in accordance with it to avoid being accused of discrimination. For example, you may have one policy applicable to all positions, stating that you do not sponsor employment visas. Or, you may have a policy that lists specific hard-to-fill positions that are eligible for sponsorship.

2. Does the Job in Question Meet Visa Requirements?

Each type of visa has its own requirements. For example, to qualify for an H-1B “specialty occupation” visa:

  • The job must require a bachelor’s degree or higher, as well as the theoretical and practical application of a body of specialized knowledge. 
  • The hired person’s degree must be in a field of study related to the job’s specialty occupation.
  • The job must pay at least the prevailing wage for the specific job description and geographic location.
  • The employer must have a Labor Condition Application certified by the US Department of Labor.

Note that the current cap on H-1B visas is 65,000 per year, with an additional 20,000 under the “master’s degree or higher” exemption, and additional allowances for immigrants from Australia, Chile, and Singapore. There is significant competition for these visas. For fiscal year 2018 (which runs from October 1, 2017 to September 30, 2018), all 85,000 of those visas had been taken by April 7, 2018. 

3. Do We Have the Resources to Support Sponsorship?

Visa sponsorship requires an employer to invest both time and money in the process. It can take up to six months to clear an employee for immigration (although the waiting period can be reduced to 15 days if you pay the premium processing fee of $1,225) and cost $5,000 or more per employee. 

You also have to remember that a visa may only “buy” you an employee for a few years. For example, an H-1B visa is good for up to three years and may be extended up to a total of six years. The employer must pay the cost of return transportation if the employee is terminated before the end of the authorized stay. At the end of the authorized stay, the employee must have either been granted permanent resident status or return to their country of origin.

Consult a San Jose Employment-Based Immigration Attorney 

If you want to hire employees from outside the U.S. and sponsor their immigration, you need the aid of an experienced Silicon Valley immigration attorney. You need someone who understands the complex landscape of U.S. immigration laws and knows how to overcome the obstacles. The lawyers at SAC Attorneys LLP have extensive experience helping businesses with a wide range of immigration issues. To schedule a free consultation, call our office at 408-436-0789.  

Sources:

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/sponsorshipforh1bvisa.aspx

https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models

https://my.uscis.gov/exploremyoptions/h1_visas_for_temporary_workers#benefit-related-content-1

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