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Bloggings: Some Common Myths About H-1B. By Roger Algase

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Now that we are in the annual rush to file H-1B petitions starting on April 1, before the pitifully inadequate number of available visas runs out,  it would be useful to look at some of the most common myths which may be preventing many qualified people from using this program.

Here are a few of the most common myths which I am constantly hearing from H-1B clients:


Myth Number 1: There are limits on the number of H-1B workers that an employer can sponsor.


Fact: There are no limits on the number of H-1B workers that an employer can sponsor. If more than a certain percentage of an employer's total workforce (depending on the size of the employer) are in H-1B status at any given time, the employer is considered to be "H-1B dependent".


However, being H-1B dependent does not prevent an employer from sponsoring more H-1B workers. It only requires the employer to look for US workers first. There are no specific rules about how this must be done.


An H-1B dependent employer must also avoid firing US workers in order to give their jobs to H-1B employees. However, unlike the case with green card sponsorship, an employer, even an H-1B dependent one,  is NOT required to obtain a labor certification before hiring an H-1B employee. See below.


Myth Number Two: An employer must show that there are no qualified US workers available for the job before it can hire an H-1B worker.


Fact: This is one of the most common misunderstandings I have encountered among H-1B clients during the 25 or more years that I have been representing employers and employees in this type of visa. Unless an employer is H-1B dependent, as mentioned above, or is a "willful violator" of the H-1B rules, there is NO requirement to recruit US workers in order to file an H-1B petition and have it approved. 


Even for H-1B dependent or "willful violator" employers, who are required to recruit US workers, there are few, if any, rules specifying what kind of H-1B recruitment activities are required, or requiring the employer to document those activities. Again, this is in sharp contrast to the complicated and onerous requirements for permament (green card) labor certification. It is important not to confuse between the two.


Myth Number Three: An H-1B Job Must Be Full Time


Fact: Part time jobs are also acceptable for H-1B employment. The salary for all H-1B jobs must be at least equal to the "prevailing wage" as determined by various acceptable US Labor Department methods, but the prevailing wage can be determined on an hourly basis, not only an annual one.


An H-1B petition approval or visa based on part time employment is just as valid as one based on full time employment, as long as the employee works only for the number of hours per week stated in the H-1B petition.


I will discuss some other common myths about the often misunderstood H-1B specialty worker progam in future comments.

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