The usual progression of hiring foreign-born professionals:
May 3, 2016:
F-1 Foreign-Born Students: Building working relationships with foreign-born professionals who have attended college in the U.S.
Generally, employers build relationships with foreign-born professionals when the potential employee is a university student on an F-1 visa. When F-1 students graduate from college, they are allowed to work in their field of study for 1 year under the OPT (Optional Practical Training) program. Students with STEM (Science, Technology, Engineering and Mathematics) degrees can now get 24 additional months of OPT under new regulations that require employers to plan a training program for the student. Because the workhorse H-1B professional visa, which most foreign-born professionals will eventually need, is numerically capped each federal fiscal year, OPT is the way you can build a working relationship with a foreign-born professional while seeking the longer-term H-1B visa when it can be applied for during the first 5 working days of April each year.
Continuing working relationships with foreign-born professionals who wish to live and work in the U.S.:
May 3, 2016:
Your OPT employees will generally ask you to sponsor them for an H-1B visa as soon as possible because the overwhelming demand for H-1B visas has essentially made that program a lottery. During the first 5 working days of each April, employers file for the H-1B’s 85,000 visas. Some 20,000 H-1B visas are set aside for foreign-born students who have obtained Master’s Degrees from U.S. colleges and universities. There are also approximately 65,000 additional H-1B visas available for those Master’s Degree students not chosen initially and for those F-1 students who do not have Master’s Degrees from U.S. colleges and universities. The reason the students are asking you to file H-1B visas for them is because eventually their Optional Practical Training will end and the H-1B visa is a working visa that can be obtained in increments of 3-years each up to an aggregate period of 6 years, longer in cases where the employee is at a certain point in their permanent residence (green card) process.
H-1B professionals who have already been counted under the H-1B cap:
May 3, 2016:
When a foreign-born professional asks an employer to transfer or change their H-1B visa, it is because the potential employee already has been counted under the H-1B cap. Any foreign-born professional who has obtained an H-1B visa from another private employer can begin work at your company, as soon as you file a new H-1B visa for them. Once counted under the cap, the employee is no longer subject to the cap and can work for up to an aggregate 6 years in the U.S. Most H-1B employees will want you to get their new H-1B approved before they begin work with you, but legally, they can begin work as soon as you file a new H-1B visa on their behalf. You must file a new H-1B visa petition for the potential employee because are not allowed to employ them based on their previous H-1B employer’s petition. But their previous H-1B approval makes them cap-exempt and portable to another employer if they work in a field that requires at least a Bachelor’s Degree in the field and the employee holds such a degree. There are today backlogs in the processing of H-1B cap-exempt visa petitions, so you as the employer will have the ability to employ the H-1B employer upon filing a good faith H-1B petition. Or the employee may ask you (although it can be paid by the employee as well) to pay the USCIS (United States Citizenship and Immigration Services) Premium Processing fee of $ 1,225.00. When paying this fee, the USCIS is required to adjudicate the new H-1B petition within 15 calendar days. Many potential employees will ask you to seek Premium Processing for their peace of mind as they change employers and make sure they are never out of status, however, premium processing it is not a required process and for that reason can be paid by the employee.