| Whether you are a large corporation or
start-up, your company depends on hiring the best and brightest employees. Often,
employers need to transcend borders to fill key positions. Hiring and retaining foreign
national employees without violating immigration laws requires knowledge and avoidance of
the most common pitfalls.
Five Strategies to Effectively Hire Foreign National
Employees & Overcome the H-1B Cap
1. Avoid the wait
Obtaining a new H-1B visa is akin to winning the lottery.
So getting it right from the start is essential. Many employers cannot wait until April
1st to file a new H-1B petition for a candidate that will begin employment on October 1st
of that same year. As a result, filing a new H-1B petition often is not feasible.
Consequently, many of my clients are hiring employees
already in H-1B status. This is called an "H-1B transfer." In this case,
prospective employees can work for you, if they:
- Are admitted lawfully to the U.S.
- Maintained lawful status
- Worked in lawful status
You must also make sure your new petition was filed prior
to the expiration of the employee's current H-1B status.
2. Get more time with the 7th year extension
An H-1B visa is granted for three years, but can be
extended for three more years for a total of six years.
The "seventh year extension" under the American
Competitiveness in the 21st Century Act (AC21) affords your candidate the right to extend
his H-1B visa beyond the six-year limit, in one-year increments. However, the labor
certification, or I-140 petition or adjustment of status application (based on an approved
certification), must be pending for more than 365 days from the date the labor
certification or I-140 was filed.
3. Find out if your H-1B applicant is eligible for the
three-year extension beyond the six-year limit?
If your prospective employee has an approved I-140
employment-based immigrant petition but is unable to adjust status because immigrant visa
numbers are not currently available, you could extend your employee's H-1B visa for three
more years beyond the six year limit.
This exception only applies if there are no immigrant visa
numbers available for the foreign employee to immediately apply for permanent residence
(i.e., green card).
This rule also applies to L-1B visa holders. In this case,
you should make sure that your candidate has more than one and a half (1½) years left on
his or her H-1B visa to accommodate labor certification and I-140 processing times.
4. Discover other available options to extend your
employee's visa status
If you're unable to extend your candidate's H-1B visa
beyond six years, there are other options available that will help you maintain your
employee's lawful visa status. For example, if your candidate has less than one year left
on his H-1B visa, you could immediately file for a labor certification on the person's
behalf.
However, I must forewarn you that this is not a perfect
solution. You should note that the suggestion above assumes that your candidate will be
able to adjust status before his or her H-1B visa expires. Recently visa numbers have not
been immediately available for Indian and Chinese nationals for second and third
employment-based categories, unless they qualify under the employment-based first
preference category.
In other words, even if your applicant qualifies under the
employment-based second preference category based on a master's or higher degree, he or
she could still be waiting three years before being eligible to file for permanent
residence.
5. Recapture time your employee has spent outside
of the U.S
If you are unable to extend your candidate's H-1B visa for
more than six years using the above strategies, and if he is not eligible for work
authorization based on a pending permanent residence application, what do you do to avoid
these limitations?
You could file an extension of the employee's H-1B status
for the period of time the employee was physically outside the United States during his or
her H-1B status. This strategy allows the applicant to "recapture" or use the
days of his or her H-1B status otherwise lost while outside the United States, on vacation
for example.
The application for extension must be filed before the
employee's current H-1B status expires.
Regardless of the number of days available for recapture,
the law allows your employee to remain in legal status beyond the I-94 expiration date,
during the pendency of the extension application, for up to 240 days or until USCIS makes
a decision.
The applicant can remain and work beyond that time, if
USCIS grants the extension for a period in excess of those 240 days. Unfortunately, the
number of days authorized to be recaptured is calculated from the date of expiry of
status, not the date of approval.
Follow these strategies and you will be able to hire and
retain foreign national employees without violating United States Immigration Laws.
This information is not intended to provide solutions to
individual problems and does not constitute an attorney client relationship. Readers are
cautioned not to attempt to solve individual problems on the basis of information
contained herein and are strongly advised to seek competent legal counsel. The above
information should not be construed as legal advice. Please note that laws change
frequently. |
