When companies have difficulty filling specialized positions, applying for an H-1B visa to temporarily employ a highly skilled foreign professional is a smart and practical solution.

The visa, created in 1952, allows a foreign worker who has theoretical or technical expertise in specialized fields like math, engineering, medicine and computer programming to work for a U.S. employer for up to six years (the visa is good for three years, but can be extended once).

Often, companies petition for the visa when hiring new professionals, to retain recent graduates working on optional practical training (an employment opportunity for foreign students completing their bachelor's or graduate degree in the U.S. to work in their field of study) or to bring in professional workers from overseas.

Applications for the visa will open April 1 for positions slated to begin Oct. 1.

The U.S. government allocates only 65,000 H-1B visas each year — as well as an additional 20,000 to individuals with an advanced degree from a U.S. university. The visas have proven to be very popular. Last year, the U.S. Citizenship and Immigration Services office received about 124,000 H-1B petitions, reaching the statutory cap of 65,000 within the first week of the filing period. When this happens, all petitions are placed into a random lottery, with some being accepted for processing and others being returned without being considered.

It's imperative that petitions are prepared in advance of the April opening and that they are properly filed. Along with a complete and accurate I-129 form, a labor condition application, evidence of the worker's education credentials and a duplicate copy of the petition must be filed. Because of the technical nature of the petitions, it's wise to consult an immigration law professional to make sure the petition is accurate and complete, so as not to risk rejection.

While nationally, large companies like Infosys Technologies, Cognizant and Microsoft lead in the number of petitions filed, local organizations such as University Corporation for Atmospheric Research, Webroot Software Inc. and Tech-X Corp. have used the visa to hire specialized employees.

Individually, however, those local companies don't come close to the number of petitions filed by the University of Colorado. Universities are well-known for employing H-1B workers and typically make up a good percentage of the nation's top users of the visa.

Importantly, though, there are no restrictions as to the size of a company that sponsors an H-1B. While typically large employers apply for many H-1B visas, small companies and startups wisely use the visa to apply for foreign professionals as well.

For companies, the benefits of H-1B workers are numerous—it's no secret that highly and very technically skilled employees support innovation, improve efficiency and generate revenue. Reports have also shown that foreign students constitute more than half of the students in U.S. graduate programs in the STEM fields—science, technology, engineering and mathematics. The H-1B visa allows employers to tap into that market.

The H-1B visa is attractive to foreign workers as it's allowable for both full- and part-time positions and does not require that H-1B workers maintain a foreign residence. The H-1B worker's spouse and minor children may also accompany the worker by obtaining H-4 visa status, and the worker can apply for permanent residency while simultaneously holding the visa.

Though an H-1B visa is employer specific, workers may also hold H-1B visas for multiple employers simultaneously, and the H-1B program requires that workers are paid the "prevailing wage" for their work.

While the H-1B program is advantageous to both employers and foreign workers, it's important the process is done with care and started early.
Brad Hendrick leads Caplan and Earnest LLC's immigration law team, which focuses on immigration and employer compliance and planning, including assisting public and private organizations with visas and permanent residence for employees. He may be reached at 303-443-8010 or bhendrick@celaw.com.