Companies often use the H-1B specialty occupation visa to employ foreign national professionals. Specialty occupations include engineers, IT personnel, financial analysts, and other fields in which a bachelor’s degree or its equivalent is required for entry level work. However, the H-1B category is governed by federal law and is subject to an annual quota. As a result, H-1B visas are not available during a large portion of each year.
Importantly, an individual who is transferring their H-1B visa from their current employer to another company is exempt from the annual quota and can transfer any time during the year. They may begin work for a company as soon as the transfer petition has been filed and they are not required to wait until the petition is approved to begin work. It is critical that they not begin work for your company until the petition is filed, meaning the correct government office has received the petition and the filing fee.
The H-1B is valid for a total stay of six years in the United States. However, changing employers does not restart the six-year clock. Therefore, it is important for a company to understand how much remaining time a potential transferee has in H-1B status. Otherwise, the company may find itself losing that employee soon, or being pressed to begin a green card right away, or both. An extension beyond the six-year limit is available in some instances, where the transferee progresses far enough in the green card process to qualify for the extension.
Understandably, employers who incur substantial expenses in obtaining H-1B approval for an employee often wish to recover these expenses if the employee leaves early. However, federal regulations provide that employers cannot recover these expenses if they constitute a penalty under applicable state law.
A company can save significant cost by determining at the outset the best job position and work location for a foreign national hire. The H-1B field is heavily regulated, with changes in job position or job location often requiring federal government approval in advance of the change. Employers should therefore contact qualified legal counsel before changing the job duties or work location of an H-1B.
As in many legal matters, early assessment is critical when the eligibility, timing, and long-term planning for a foreign national transferee is involved. Substantial costs can be saved by advance planning, while compliance with the H-1B and other regulations can be maintained. Dan White