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H-1B Visas: 6 Most Misunderstood Facts

The H-1B visa program has cooked up a hot stew of myths and misconceptions. Legal experts break down the facts on salaries, timing, and more.

Myth 4: H-1B visas are the only option for hiring non-US citizens.

Reality: "That's actually not the case -- an H-1B is just one kind of visa," Richards said. "There are many, many different avenues for people to work in the United States."

Rose, too, pointed out the variety of visas that enable skilled foreigners to work legally in the US. Some are country-specific, such as the TN visa for Canadian and Mexican citizens, or the E-3 visa for Australian workers. Rose noted that free-trade agreements between the US and Chile and Singapore include unique visa provisions for workers from those countries, too.

Companies with international offices can apply for an L-1 visa for existing employees, a temporary permit for workers transferring within an organization. "That currently has no numerical restrictions on it, so that's another option that companies have," Rose said.

There's also the J-1 visa, which can be used to hire interns and trainees.

Last but not least, employers can look to recent or upcoming college graduates without pursuing the standard H-1B process. "Every student visa issued in the United States has a bundled one year of work credit," Richards said. "For [science, technology, engineering and math] graduates, we can actually get that extended to three years."

Takeaway: You've got options. Employers must invest the time to make the right choices when it comes to hiring foreign employees. Don't overlook current employees in international offices, new college graduates, and other talent pools.

Myth 5: You must first prove that can't find a qualified American worker.

Reality: That's simply not a requirement of the H-1B visa. It's a requirement of the green card process, Rose noted, and that causes the misunderstanding.

Takeaway: Make sure you're not confusing different types of immigration and visas. H-1B visas and green cards, for instance, are entirely separate things.

Myth 6: H-1B visas replace American workers with cheap foreign labor.

Reality: Employers must pay H-1B workers the "prevailing wage," or market rate, for their positions. That rate depends on geographical location and is often based on the Department of Labor's wage database, according to Rose. Unless an employer is breaking the rules -- reporting higher salaries than it's actually paying -- the "cheap labor" claim is typically off-target.

"That's a consistent misconception [about H-1B workers], that it's cheap foreign labor -- just bring cheap people in," Rose said. "The wages are not cheap, I don't think. Now, whether the person actually gets paid that amount by the company is the other issue, and that's where some fraud has come in."

Takeaway: Don't play reindeer games with H-1B employees, such as reporting a higher salary than you're actually paying. The penalties will be painful if you get caught. Both Rose and Richards said they expect the recent increase of H-1B-related scrutiny and audits to continue for the foreseeable future.

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