H-1B Visa Rules: Latest Updates - Ask Sophie

Dear Sophie: Navigating H-1B Visa Sponsorship

This is another installment of “Dear Sophie,” a column dedicated to answering immigration questions specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of knowledge sharing. She states that your inquiries are crucial for empowering individuals globally to overcome geographical limitations and achieve their professional aspirations.

Access to weekly “Dear Sophie” columns is available to TechCrunch+ members. A 50% discount is offered on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

I have a long-held ambition to live and work within the United States. I am actively applying for software engineering roles, and one company has indicated that, should they hire me and secure an H-1B visa on my behalf, the associated filing fees and costs will be deducted from my salary. Is this practice legally permissible?

Furthermore, would it be acceptable to have multiple companies submit my information into the H-1B lottery to enhance my chances of selection? Would these companies be aware of each other’s submissions?

— Motivated in Morocco

Dear Motivated,

Thank you for posing these important questions. The current job market presents a favorable opportunity to seek employment with companies willing to sponsor prospective employees for the H-1B visa.

The majority of companies have already begun, or are preparing to initiate, the process of identifying candidates for H-1B sponsorship. I recently addressed some of your concerns, along with other important considerations, in a podcast discussing the H-1B lottery process, which commences in March.

With many startups responding to the challenges of the Great Resignation by recruiting skilled professionals, like software engineers, remotely through the use of global professional employer organizations (PEOs), your questions are particularly relevant as the next lottery season approaches.

H-1B Lottery and Company Support

For a startup, entering a candidate into the H-1B lottery represents a valuable means of supporting a talented team member. The number of H-1B registrants increases annually.

Startups frequently demonstrate strong support for their team members through H-1B sponsorship. This enables them to improve their quality of life in the U.S., fosters loyalty, and facilitates more effective collaboration within a shared time zone.

Important Note: The legality of deducting H-1B filing fees from an employee’s paycheck varies and depends on state law. It’s crucial to consult with an attorney to understand the specific regulations applicable to your situation.

Regarding multiple lottery entries, while not explicitly prohibited, it's a complex issue. Companies generally are not informed about other submissions made on behalf of the same individual.

Understanding H-1B Visa Fee Responsibilities

Federal law dictates that employers are prohibited from charging H-1B visa beneficiaries for expenses directly related to their own business operations.

Specifically, the employer is responsible for covering the $10 lottery registration fee, legal fees associated with the H-1B process, and the expenses involved in preparing and submitting the H-1B petition. This also includes the cost of the Labor Condition Application filed with the U.S. Department of Labor.

Furthermore, employers cannot require H-1B holders to pay for tools, equipment, work-related travel, or general living expenses incurred during business trips.

However, certain costs can legitimately be borne by the employee. These typically include the translation of personal documents and visa fees for family members.

Fees related to collective bargaining agreements may also be passed on to the employee, though legal counsel should be consulted to confirm compliance.

The Competitive Landscape and Employer Benefits

The current demand for skilled technology professionals in the U.S. is driving companies to enhance their recruitment and retention strategies.

Many organizations are now proactively offering immigration support as an employee benefit, voluntarily covering costs beyond what is legally required.

This can include sponsoring employees for a green card application after a period of employment, often within one to two years.

• Employer Responsibility: Lottery fees, attorney fees, LCA filing costs.
• Employee Responsibility: Personal document translations, family visa fees.

It is crucial to partner with an H-1B sponsoring employer that prioritizes both legal adherence and a supportive workplace culture.

Ensuring a positive experience is vital for attracting and retaining valuable international talent.

H-1B Visa Lottery Registration Guidelines

An employer is permitted to submit only one registration per individual annually for the H-1B lottery. Should an individual be entered multiple times by the same employer, their registration will be disqualified.

Despite this restriction, it remains technically feasible for an individual to be registered by multiple companies within the same lottery year. Many candidates understandably seek to maximize their chances of selection.

Multiple Registrations and USCIS

It's important to remember that holding job offers from several companies is legally permissible. However, submitting multiple registrations could potentially attract scrutiny from U.S. Citizenship and Immigration Services (USCIS).

USCIS may require verification to ensure the validity of each job offer received. Therefore, careful consideration should be given to this possibility.

Maintaining Professional Integrity

While employers may not be aware of other companies registering a candidate, maintaining integrity and transparency is crucial.

Openly communicating your approach with prospective employers is highly recommended, as your professional reputation is a valuable asset, particularly within the technology sector like Silicon Valley.

Potential Employer Recourse

In specific, limited circumstances, an employer might be able to seek limited financial compensation from an H-1B visa holder who departs before a predetermined date.

The availability of such recourse is contingent upon the extent of the damages incurred and the applicable state laws. If you encounter this situation, seeking guidance from an immigration attorney is strongly advised.

Key Considerations

• Only one registration per employer, per year, is allowed.
• Multiple registrations by different employers are possible.
• USCIS may investigate multiple offers.
• Transparency with employers is recommended.
• Legal counsel is advised in cases of employer disputes.

Alternative Visa Options to the H-1B

Should your H-1B lottery registration prove unsuccessful, several alternative pathways to U.S. work authorization exist. These include the cap-exempt H-1B visa, the O-1A visa for individuals with extraordinary ability, and potentially an E-2 visa for those prepared to establish a business within the United States.

A more detailed exploration of these and other possibilities can be found in the podcast episode, “Selected or Not Selected in the H-1B Lottery, Now What?”

Exploring Additional Visa Choices

The H-1B visa isn't the sole route for skilled professionals seeking employment in the U.S. Consider these options:

• Cap-Exempt H-1B: Certain employers, like universities and non-profit research organizations, are exempt from the annual H-1B cap.
• O-1A Visa: This visa is designed for individuals who demonstrate extraordinary ability in the sciences, arts, education, business, or athletics.
• E-2 Visa: If you are a national of a treaty country and intend to invest a substantial amount of capital in a U.S. business, the E-2 visa may be a viable option.

Successfully navigating the U.S. immigration system requires careful planning and consideration of all available avenues.

We extend our best wishes as you pursue your professional goals in the U.S.

— Sophie

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Please note that the information presented in “Dear Sophie” is intended for general knowledge and should not be considered legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please review our comprehensive disclaimer.

You can reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups,” is accessible on all popular podcasting platforms. Applications are currently being accepted for potential guests!