Guide to the H-1B visa & remote working

The H-1B visa is a unique way for companies based in the U.S. to tap into international talent communities.

One of the key reasons why the H-1B visa is valuable is because it allows companies in the United States to hire highly skilled workers in fields that may experience a shortage of qualified American workers. For example, there may be a shortage of qualified engineers or IT professionals in the United States, but there are plenty of qualified foreign nationals who can fill those roles. By hiring foreign national employees on H-1B visas, U.S. companies can ensure that they have access to the talent they need to stay competitive and grow their businesses.

The H-1B visa also allows foreign national employees to gain valuable on-the-job training and experience in their field while working for a U.S company. This type of training and experience can be extremely valuable when these employees return to their home countries and apply what they've learned to their own work environments. Additionally, by working for a U.S. company, foreign national employees can develop relationships and networks that may be beneficial to them later in their careers.

Ultimately, the H-1B visa program helps to foster international economic competitiveness by ensuring that U.S. companies have access to the best and brightest talent from around the world. With the ability to hire talented foreign nationals, U.S. companies can remain at the forefront of innovation and continue to create cutting-edge products and services that drive economic growth both in the United States and around the globe.

What is an H-1B visa status?

An H-1B visa is a non-immigrant visa that allows employers in the U.S. to temporarily employ foreign workers in specialty occupations.

Specialty occupations are defined as requiring: "theoretical and practical application of a body of highly specialized knowledge; and attainment of bachelor's or higher degree in specific specialty related to intended area employment." Examples provided by the United States Citizenship and Immigration Services (USCIS) include but are not limited to architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, finance, art, and entertainment positions.

For computer-related positions there is additional guidance outlining the types of work that qualify under this category. Generally speaking, most professional-level jobs that require at least a four-year degree are likely to fall into this category.

H-1B visas are normally issued for an initial period of three years, with the possibility of extensions up to six years total. After the expiration of their authorized stay, H-1B holders may apply for an extension if they can demonstrate circumstances beyond their control (e.g., company downsizing) that warrant an additional stay in the United States. Extensions may also be available under other special circumstances as, for example, if an individual has filed for permanent residency status through their employer (also known as adjustment of status).

Requirements for the issuance of an H-1B visa

Below are the H-1B visa requirements:

A job offer from an employer based in the United States

As mentioned above, the H-1B visa requires that the applicant have a job offer from a U.S. employer in a role that qualifies as a specialty occupation. If, as an employee, you wish to sponsor an H-1B applicant, you must demonstrate that you are unable to fill the position with a U.S. worker. This is typically done by advertising the position and conducting interviews with U.S. candidates. If you are unable to find a qualified U.S. worker for the position, you may then sponsor an H-1B visa holder for the role.

The employee must hold a bachelor's degree or higher

To qualify for an H-1B visa, the position must require at least a bachelor's degree or its equivalent and you must demonstrate that you are unable to find qualified U.S. workers to fill it. 

The employee must obtain all required licenses and certifications

Since H-1B visas require a bachelor’s degree, appropriate state licenses and certifications may also be needed. Requisite credentials will vary with the type of position. For example, an H-1B visa holder who is working as a doctor would need to obtain a license to practice medicine in the state where they are employed. Similarly, someone working as an engineer would need to get any required engineering license for their state. These requirements ensure that only qualified individuals can work in certain professions.

How to sponsor an H-1B visa applicant

As a U.S. employer wishing to sponsor an H-1B visa applicant, you must file a petition with the USCIS on behalf of the employee. There are a number of steps involved:

Ensure the position qualifies as an H-1B specialty occupation

The first step is to ensure that the position qualifies as a specialty occupation. The USCIS considers several factors, including but not limited to:

• Whether the degree requirements for the position are common to similar positions in the natural sciences, medicine or other fields; OR

• Whether the duties of the position are so specialized and complex that they can be performed only by an individual with a particular type of degree; AND

• Whether the petitioner has met relevant license or certification requirements

Provide a U.S. worker notification

You must notify potential U.S. workers of the impending H-1B filing by providing them with a Notice of Filing an H-1B Petition. The notice must contain specific information about the position, including the wages offered, work hours, and location(s) of employment. It must also state that you intend to file an H-1B petition on behalf of a foreign worker for the position. You may post the notice electronically (on your company intranet or website), as long as all potential applicants have access to it.

Submit a Labor Condition Application (LCA) to the DOL

Next, you need to file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). In the LCA, you attest to certain working conditions, including wages and benefits paid to H-1B employees.

The LCA is used to certify that the wages being paid to the H-1B worker are not below the prevailing wage for their occupation in the area of employment, and that there is no strike or lockout at the place of employment. 

Register for the H-1B lottery and await selection

You then need to register for the H-1B lottery. The lottery is open to all employers who wish to sponsor an H-1B employee. To register, you will need to complete and submit an online registration form. Once your registration has been accepted, you will be entered into the lottery.

The lottery will select employers who will be eligible to receive an H-1B visa sponsorship allocation for the upcoming fiscal year. If your company's name is selected in the lottery, you may proceed with sponsoring your chosen employee for an H-1B visa (assuming they meet all other eligibility requirements).

File form I-129 with the USCIS

Once the LCA is approved and you win the H-1B lottery, you can file an I-129 Petition for a Nonimmigrant Worker with the USCIS. The petition must be accompanied by proof that the applicant has a bachelor's degree or higher in their field of specialty, as well as other supporting documentation, such as job descriptions, letters from current and past employers, and pay stubs.

If the USCIS approves the petition, the applicant will then need to apply for an H-1B visa at a U.S. consulate abroad.

Can H-1B workers work remotely?

The rise of digital technology has made it possible for more and more employees to telecommute, or work remotely. This is a growing trend in the United States, as employers are finding that there are many advantages to letting their employees work from home. For employees, working remotely can be a great way to reduce stress and save time on commuting. It can also make it easier to balance work and family obligations. For employers, remote work can lead to increased productivity and decreased overhead costs.

Although the H-1B visa program is designed for employees who will work onsite at their employer's offices, there are some circumstances under which H-1B workers may be able to work remotely. Note that H-1B employees may only work in locations in the H-1B sponsorship petition. Therefore, allowing remote work needs careful consideration as it may require amendments to the existing filing.

Allowing remote work for H-1B employees depends on the individual employer's policies and the specific nature of the work being done. In some cases, working remotely may be less essential for H-1B workers than it would be for other employees. For example, if an H-1B worker is hired primarily to provide in-person customer service or support, then it might not make sense for that employee to work remotely. On the other hand, if an H-1B worker is hired primarily for their technical skills and expertise, then working remotely might not have as significant an impact on their ability to do their job. Ultimately, whether or not remote work is a good option for H-1B workers will depend on the specific circumstances of each case.

In order for an H-1B employee to work remotely, the following conditions must be met:

1. The employee must have already been working for the employer in question for at least one year.

2. The position cannot be one that requires an on-site presence (e.g., construction worker, server).

3. The employee must have approval from the USCIS to telecommute.

4. The arrangement between employer and employee should be outlined in writing and approved by both parties.

5. Employers should notify their state workforce agency of any changes in worksite location resulting from telecommuting arrangements.

H-1B workers may find telecommuting to be a particularly attractive option, as it can allow them to avoid difficult commutes and save on living expenses. Additionally, working remotely may make it easier for H-1B workers to maintain ties to their home countries while still meeting the requirements of their visa status. Ultimately, whether or not remote work is a good option for H-1B workers will depend on the specific circumstances of each case.

Working remotely in the U.S.

If an employer allows an H-1B employee to work remotely within the United States, then the employer is still responsible for that employee's wage and working conditions. The Wage and Hour Division of the U.S. Department of Labor can investigate violations of wage laws, even if they occur when employees are telecommuting. Additionally, the DOL may also investigate potential visa fraud if it appears that an employer is using the H-1B program to outsource jobs overseas.

Working remotely outside the U.S.

If an H-1B employee is working remotely outside of the United States, they may not be covered by U.S. labor laws. The Department of Labor cannot investigate complaints from H-1B employees who work outside the United States. In addition, H-1B employees working remotely may not have the same protections as employees who are physically present in the United States. For example, remote workers may not have access to certain benefits or protections under U.S. law, such as workers' compensation or unemployment insurance.

Regardless of whether the H-1B employee works remotely inside or outside the U.S., employers should take note that they may encounter a pitfall that can cause extra overhead. Due to wage discrimination protections under H-1B visa rules, the workers will receive the same wage rates as originally offered, or will receive the higher of the prevailing wage rates available if there are multiple work locations — whichever is higher.

Your solution to hiring remote talent around the globe

The H-1B visa has come under increased scrutiny in recent years, with many believing that it is being abused by employers. While there are certainly some employers who are taking advantage of the system, the vast majority of businesses rely on the H-1B visa to find and hire top talent from around the world. The simple fact is that there is a shortage of skilled workers in the United States, and businesses have no choice but to look outside of our borders to fill roles that they need. 

Many companies are considering a remote work model as a good way to attract the world’s top talent. However, they may be reluctant to embrace this hiring strategy because of perceived obstacles or a lack of knowledge about employer of record services. This is where Remote can help. Remote specializes in helping companies save time, money, and effort by creating country-specific benefits packages at highly-negotiated prices. This allows businesses to offer equitable, best-in-class benefits to their employees for a fraction of the cost. If you're looking for help finding and hiring top global talent, contact us today!

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