Overview of H-1B Process

By David Ionson

The H-1B visa program allows U.S. employers to hire foreign professionals to work in the United States for extended periods of up to 6 years. The H-1B visa allows U.S. companies to employ foreign workers in occupations that require theoretical or technical expertise, such as computer science and information technology, biomechanical engineering, and health care.

The H-1B visa application process involves the following steps:

1) The employer files a Labor Condition Application with the U.S. Department of Labor (DOL).
2) The employer files a visa petition with the USCIS.
3) Once the visa petition is approved, the worker applies for a visa at the U.S. consulate in his or her country. (This step is not necessary if the employee is currently in the U.S. legally or from Canada.)
4) The employee uses the visa to enter the U.S.

The Labor Condition Application:

The Labor Condition Application (LCA) is a form that the employer fills out and submits to the Department of Labor. The LCA requires the following information:

Worker need information. The title of the job for which the workers are sought, the beginning and ending dates of employment, and the number of positions for which foreign workers are sought.
Employer/Agent information. The employer’s name and contact information; the name and contact information for the employee authorized to communicate with the DOL on the employer’s behalf; and the name and contact information for the employer’s attorney.

Rate of pay. The pay rate or pay range to be paid to the foreign workers.

Employment and prevailing wage information. The place of employment, the prevailing wage for the job, and how the employer determined the prevailing wage.

Employer labor condition statements. (1) A promise that foreign workers will be paid wages at least the higher of (a) the wages the employer pays to other workers with similar qualifications or (b) the prevailing wage for the job in the area; (2) a promise that the foreign workers will not adversely affect the working conditions of other employees and that the foreign workers will be provided with the same working conditions as U.S. workers; (3) a promise that the jobs to be filled by the foreign workers are not the subject of a labor dispute; and (4) a promise that the employer has either notified the labor union that represents employees in the job or, if no union exists, the employees in the job of its LCA filing.

If the DOL accepts the LCA, it will return an endorsed copy to the employer which the employer then must submitted to the USCIS as a supporting document to the visa petition.

The H-1B Visa Petition:

The employer submits a visa petition, Form I-129, to the USCIS. The purpose of the petition is to prove that the job is a specialty occupation that meets the requirements for the H-1B visa and that the employee has the background and skills to qualify for the job. The petition must be filed with supporting documentation including:

i) The endorsed LCA.
ii) Evidence that the proposed employment qualifies as a specialty occupation.
iii) Evidence that the proposed employee (the beneficiary of the petition) has the required degree (i.e., a copy of the degree itself, and, if the degree is from a foreign institution, evidence that it is equivalent to a U.S. degree, or evidence of education and experience that is equivalent to the necessary U.S. degree.)
iv) A copy of any license the prospective employee holds that is required to practice the position.
v) A copy of any written contract between the employer and the proposed employee or a written summary of their oral agreement.

The employer must submit this form no earlier than six months prior to the proposed employment start date.

The Visa Application:

After the employer’s visa petition is approved, the prospective employee applies for a visa at a U.S. consulate abroad (normally in his or her home country). The employee must complete an application on line and submit it along with a passport and photograph. Also required is proof that the employee meets the educational requirements for the job. The employee must make an appointment for an interview. Further information about the visa application process is available at the State Department website.

For help with H-1B visa applications please contact an immigration attorney to ensure all steps in the process are completed smoothly and efficiently.

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