We are often asked this question: What happens if the beneficiary was unemployed for a period of time before a new employer files an H-1B transfer petition?

 

Our experience is that the USCIS uses its discretion and approves the transfer with change of status when the unemployment period is comparatively short. But it if it is more than a few weeks, then the situation could be a little more complex. The case could still get approved, but with consular processing, meaning the beneficiary should depart the US and get the visa stamp to be able to work for the newemployer. In such cases, we advise the employer not to put the new alien on the payroll until the H1B petition outcome is known. We also recommend premium processing for such petitions.

We are often asked the question whether startup companies qualify for H-1B approvals, and about the likely queries such companies can expect from USCIS. At the outset, let me say that the rules do not prevent start-up companies from filing H-1B Petitions.

H-1B visas are granted by the US Citizenship and Immigration Services (USCIS) to foreign nationals to work in "specialty occupations" that require a minimum of U.S. bachelor's degree or equivalent. Currently the worldwide quota for a fiscal year is 65,000 visas, out of which 6,800 are reserved for nationals of Singapore and Chile. The fiscal years runs from October 1st to September 30th of the following year. Additionally, there is a special quota of 20,000 visas available for holders of advanced degrees from US graduate schools.

It is a legal requirement that employers pay their H-1B employees wages equal to or higher than the “prevailing wage.” This prevailing wage is the wage determined by the State Workforce Agency for a specific geographical location of employment. The easiest way to get this is from the online wage library website of the Department of Labor Foreign Labor Certifications unit. Another method is to ask the State Workforce Agency for the prevailing wage by giving the job title, job duties, education/experience requirements, etc. Each state has its own format and procedure for suchprevailing wage requests. The third option is to use wage surveys published in the preceding two years. The employer can also use a union contract negotiated by a bargaining representative. Yet another option is for the employer to have a custom wage survey commissioned. The last option is obviously the most time-consuming.

The current economic meltdown has resulted in massive layoffs, and a good number of persons laid off are foreign nationals on H-1B visas. H-1Bs are non-immigrant visas granted by the United States Citizenship and Immigration Services (USCIS) to foreign nationals to work in "specialty occupations" that require a minimum of US bachelor's degree or equivalent. Further, these foreign nationals are limited to work only for the petitioning employer, and such employment is subject to various restrictions including wage obligations by the employer. For this reason, when a person employed on H-1B status is laid off, he/she is essentially left with the limited options of finding another job right away or leaving the US.