Common Questions for the HR Professional

Commonly asked Questions by the HR Professional When Hiring a Foreign National

Q. What questions can I ask to find out if an individual needs immigration assistance without discriminating against the individual?

A. You may ask the question, “Do you have unlimited, unrestricted authorization to work for any US employer?”

Q. Would I be discriminating against a foreign national (“foreign national”) if I did not consider him/her for a possible position since s/he is not a US citizen?

A. No. You may hire a U.S. worker over a foreign national even if s/he possesses the same skill set and educational level.

Q. What documents do I ask the foreign national to present for I-9 purposes?

A. For I-9 purposes, you may not specify what documents s/he may present. You can advise that s/he must provide documentation in compliance with the Form I-9 list of acceptable documents.

Q. Can I extend an offer but make it based on the foreign national obtaining authorization to work in the U.S.?

A. Yes. You should consult with local employment contract counsel for advice regarding such a contingency.

Q. I have a candidate who states that s/he is on an F-1 visa and eligible to work pursuant to Optional Practical Training (“OPT”). What does this mean?

A. In most cases Optional Practical Training (“OPT”) allows a foreign national to work for up to one year after graduation from college or university in his/her field. OPT is facilitated and authorized by the college’s Foreign Student Advisor (FSA). Typically it takes approximately up to ninety (90) days for the USCIS to issue an Employment Authorization Document once the student is authorized for OPT by his/her FSA. The foreign national will receive an Employment Authorization Document (EAD). The foreign national must possess this card before s/he is authorized to work. OPT may be authorized for one year and may be extended in certain circumstances.

Q. What if I want to employ the foreign national for more than the one (1) year of OPT?

A. The foreign national may be eligible for another employment-based visa. Please contact one of our attorneys for further information.

Q. What positions typically qualifies a foreign national an H-1B visa?

A. Positions that require at least a Bachelor’s degree typically suffice. The foreign national must possess the Bachelor’s degree (or is equivalent) in a field specifically related to the position.

Q. How do I find out what the prevailing wage is for an H-1B?

A. This information is available through the www.flcdatacenter.org. For additional information, please contact one of our attorneys.

Q. What if my candidate states that s/he is on an H-1B visa for another employer and s/he just needs a “transfer”?

A. A new H-1B petition must be filed with the USCIS before the foreign national may “transfer”. For additional information, please contact one of our attorneys.

Q. Who pays for the H-1B visa and how much does it typically cost?

A. U.S. immigration law requires that the employer cover mandatory filing fees as well as legal fees and costs. For additional information, please contact one of our attorneys.

Q. How quickly can the foreign national start working for my company?

A. It depends on the foreign national, visa status or the type of petition/application being filed on his/her behalf. For additional information, please contact one of our attorneys.

Q. What information is needed from me to get started on an H-1B petition?

A. You will need to know and/or have a copy of the following:

1. The full legal name of the company which will employ the H-1B worker, the street address and mailing address (if different), and the employer’s telephone & fax numbers;

2. The full legal name of the company at which the H-1B worker will work (if different from #1), including both street and mailing address, telephone and fax numbers;

3. A copy of the Articles of Incorporation or Operating Agreement of the employer or, if not available, the date and place the company was established;

4. A description of the employer’s business and company and/or product brochures (if available);

5. The Federal Tax Identification Number (FEIN) of the employer and documentation of the employer’s FEIN (documentation from IRS noting assignment of FEIN, Federal or State tax return, a pre-printed tax coupon, documentation from employer’s financial institution showing employer’s FEIN, Secretary of State registration documents, or other documentation showing the FEIN and name of the employer);

6. The annual gross sales and the number of individuals employed;

7. The job title and a detailed description of the position being offered to the H-1B worker;

8. The minimum requirements for the position offered (a Bachelor’s Degree or the equivalent is the minimum education requirement for the H-1B);

9. The salary being offered to the H-1B worker and the salary range for the offered position;

10. The name and title of the H-1B worker’s immediate supervisor and the name and title of the employer’s representative who will sign the required application and petition forms, if different than the immediate supervisor;

11. The number (and titles) of individuals the H-1B worker will supervise (if any); and

12.  The proposed start date of employment.

Q.  Do I have to coordinate obtaining documents from the foreign national?

A. No. Garfinkel Immigration can work directly with the foreign national to get the information needed in order to prepare the petition materials.

Q. Once I get Garfinkel Immigration the answers to its questions, what happens next?

A. Garfinkel Immigration prepares the necessary documentation and e-mails it to the individual with signatory authority and the foreign national. Once the documents are signed and returned, Garfinkel Immigration can file the case with the appropriate government agency.

Q. For how long is the H-1B valid?

A. An H-1B petition may be approved for a maximum period of three (3) years with a six (6) year cap on a foreign national’s H-1B stay in the U.S. An exception to the six (6) year cap is when a “green card” application (Labor Certification Application or I-140 petition) has been filed on the foreign national’s behalf before the start of the 6th year. Under these circumstances, one year extensions beyond the 6th year may be authorized.