Dear Sophie: What are the latest rules for H-1B visas?

​​Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’ve always wanted to live and work in the United States. I have been applying for software engineering positions in the United States, and one company says that if they hire me and get me an H-1B visa, the filing fees and cost will be taken out of my paycheck. Is that allowed?

Also, is it permissible to have more than one company put me into the H-1B lottery so I have a better chance of being selected? Will the companies find out?

— Motivated in Morocco

Dear Motivated,

I appreciate you reaching out with your questions! Now is an ideal time to look for job opportunities with companies that are willing to sponsor prospective hires for an H-1B. Most companies have started — or will soon start — the process of identifying H-1B candidates. I recently dove into a few of your questions and more dos and don’ts in a recent podcast about the H-1B lottery process, which will begin in March.

As many startups are dealing with the Great Resignation by hiring talented professionals, such as software engineers, remotely using various global professional employer organizations (PEOs), your questions are common heading into the next lottery season.

For a startup, putting a candidate in the H-1B lottery can be a great way to support your talented team member because the number of H-1B registrants rises each year. Startups often eagerly support their team members through H-1B sponsorship to enable them to have a better life in the U.S. and increase loyalty, as well as to bring them into a more synchronous time zone to enable fluid collaboration.

Who pays H-1B fees and costs?

According to federal regulations, an employer cannot collect H-1B-related fees and costs for the “employer’s business expenses” from the beneficiary of the H-1B visa.

That means the employer must pay the $10 registration fee to enter employees or prospective employees into the lottery, attorney fees and costs connected with the H-1B program, and the cost of preparing and filing an H-1B petition, including the Labor Condition Application that is filed to the U.S. Department of Labor. Other costs that an employer cannot pass along to an H-1B holder include expenses for tools and equipment, transportation costs necessary to employment and living expenses when the employee is traveling on company business.

However, some costs and fees may be paid by the employee, or employers are allowed to pass along some fees and costs to an employee. Examples of what employees are able to pay for generally include translations of personal documents, family members’ visas and fees related to a collective bargaining agreement, but this is definitely something to talk to your attorney about.

Keep in mind that a shortage of tech talent in the United States is prompting many companies to do all they can to attract and retain talent. Forward-thinking companies are offering up immigration as a benefit, paying the immigration-related costs and fees that they are not required to cover and agreeing to sponsor new hires for a green card after a year or two of employment.

Make sure your H-1B-sponsoring employer cares both about legal compliance as well as creating a hospitable work environment.

H-1B lottery registration

A company can only register an individual once for the H-1B lottery each year. If an individual is registered more than once for a lottery by the same company, that individual will be removed from the lottery.

However, it is technically possible for you to have multiple companies register you for the H-1B lottery each year. I understand your desire to increase your odds of being chosen in the H-1B lottery. Keep in mind that you are legally allowed to have a job offer from more than one company, but this may raise a red flag with U.S. Citizenship and Immigration Services (USCIS), which will want to make sure the job offers are legitimate.

Even though each company that registers you for the lottery may not find out about the other prospective employers, I recommend you approach the situation with integrity and transparency by communicating your approach with those prospective employers as you take your reputation with you in Silicon Valley.

In some limited situations, an employer may receive limited damages from an H-1B recipient who leaves the employer before an agreed-upon date depending on the damages and state law. If you find yourself in this situation, I recommend consulting with an immigration attorney.

Alternatives to the H-1B

If you don’t get selected in the lottery, there are several backup options available, such as a cap-exempt H-1B, an O-1A visa or even an E-2 visa if you have the desire and the means to start your own company in the U.S. I discuss these and other options in my podcast episode, “Selected or Not Selected in the H-1B Lottery, Now What?”

Best wishes to you on your journey to the U.S.!

— Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

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