The H-1B visa is temporary employment visa allowing the alien to work in the United States for a specified employer. This visas given to qualified individuals in a “Specialty Occupation”. It is usually given for a period of up to three years at a time (maximum), and the alien cannot exceed six years maximum on H-1B status. Accordingly, the H-1B visa allows employers to hire qualified foreign individuals, including foreign students studying in the United States. Similarly, foreign students studying in the United States can adjust their status from F-1 to H-1B while in the United States. There are three steps to receiving a H-1B visa. Firstly, the employer must file a Labor Condition Application (LCA) with the Department of Labor in the region the alien will work. The employer must show that the salary the alien will be paid is not lower than the prevailing wage for the occupation, thus ensuring that American workers are not undermined. Our General Information letter explaining the LCA process is found at the end of this section. Secondly, upon approval of the LCA from the Department of Labor, petitions filed with the Immigration and Naturalization Service for the approval of the H-1B petition. Once this is approved, the approval is forwarded to the requested U.S. Consulate abroad. Thirdly, the alien if outside the country is interviewed at the Consulate and if accepted, granted a visa. If the alien is in the United States in a legal status (such as B1/B2, L1, L2, H-4 and Student/F-1), their status is adjusted within the United States. In order for us to process a H-1B visa petition, the employer and employee must complete the attached questionnaire, found at the end of this section following our General Information Letter.
An American company must file a petition with the Immigration and Naturalization Service to sponsor a foreign national to work in a “specialty occupation”. The petitions filed by the employer, not the prospective employee. This petition is made on Form I-129 and H-Supplement accompanied by the certified LCA and supporting documentation,and by $610 in government filing fees payable to I.N.S.
In order to be eligible for H-1B status, the position has to be one, which requires specialized knowledge. This is most often evidenced by the requirement that the individual have the equivalent of a U.S. bachelor’s degree in the field of the occupation.For most foreign degrees, an educational credential evaluation is highly advisable.
On average, the processing of a H-1B visa petition is taking between four to six weeks.
Accompanying family members (spouse and children) will be issued a H-4 visa. The family requires a valid passport(s) and proof of relationship with the principle applicant. Should the family not be applying for their visa at the consulate at the same time as the student or not be adjusting status from within the United States, they will also require a copy of the principle applicant’s approvedH-1 visa, his I-94 card and a recent letter from the employer of the H-1beneficiary indicating that he is currently employed with the company per the terms of the H-1 visa.
This memorandum will explain the basic procedures to obtain H -1B work authorization. Since the Immigration Act of 1990, the H -1B petition process requires two basic steps. First, the employer must apply to the Department of Labor for certification of a Labor Condition Application. Certification is usually received in approximately one week. Once this certification is obtained, the petition for H -1B classification is filed with the Immigration and Naturalization Service, where processing normally takes one to two months. It should also be remembered that if the alien were outside the United States, he or she would need to apply to a U.S. consular post abroad for an H 1 visa. If the alien is already in the U.S., such application will generally be necessary the first time he or she leaves the country.
The newer immigration law is called the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Its enabling regulations, from the Department of Labor (DOL), were published as a proposed draft in 1999, but are not yet finalized. This new law requires more of those employers which it calls H-1B dependent. Here is the governments current definition of an H-1B dependent employer:
But note that H-1B workers whose wages equal at least $60,000 per year, or who have attained a Masters degree in a specialty field related to their occupation, are not considered to count as H-1B employees for purposes of calculating whether you are an H-1B dependent employer. That $60,000 may include cash bonuses and similar compensation, if payment is assured, cash in hand, within that year for which the employer wants it to Acount, according to the 1999 proposed DOL regulations.
It is necessary to file a Labor Condition Application (referred to hereinafter as an “LCA”) with the Department of Labor before an H -1B petition is filed with INS. One of the main pieces of information on the LCA is the wage, which the company proposes to pay. The law requires that this wage be either the “actual wage” for the particular occupation at the place of employment, or within 5% of the “prevailing wage” for the occupation in the general geographical area – whichever of the two is higher. An employer may, if he chooses, pay more than the actual or the prevailing wage. An employer may put a salary range on the LCA form, but the lower end of the range must be at least the higher of the actual and prevailing wage rates. Thus, the initial task in preparing an LCA is to determine both the actual wage and the prevailing wage for the position in question. The actual wage means the wage rate paid by the employer to individuals with experience and qualifications similar to the alien for the specific occupation in question at that worksite. If there are such individuals at the company, and if they are paid more than the proposed salary for the alien, it is necessary to justify the discrepancy based on a difference in such factors as educational attainments, years of experience, particular skills and abilities, responsibilities and functions, seniority with the company, etc. If there is no such basis to justify the discrepancy, then the alien must be paid at least the same amount as the other employees with similar experience and qualifications for the specific occupation. To do an actual wage analysis, it is necessary to have information concerning the other individuals who are employed by the company in the specific positioning question. You must also be able to explain the actual formula or methodology the company uses to calculate wages. The prevailing wage means the average rate of wages for the specific occupation in the geographical area of intended employment.
The quickest means of establishing the prevailing wage is by reference to one or more independent authoritative source wage surveys, which can be done instantly. The most reliable means is by requesting a prevailing wage determination for the geographical area from the state employment agency (the SESA). If the employer requests a ASESA@ wage survey, which requires several weeks, we will be happy to do so. Recognizing that it may be difficult to as certain the prevailing wage with precision, the regulations provide that the salary must be within five percent of the prevailing wage. We will work with you to obtain the prevailing wage for the position a issue, and to determine the actual wage.
On the Labor Certification Application form itself one puts the wage, the prevailing wage and its source, the job title, the number of H -1B workers needed, and the period of need. Currently, under existing law, an employer also makes the following four attestations:
Under the 1999 proposed Department of Labor Regulations, if they are approved as written, all H-1B dependent employers will be required to make two additional attestations:
Recently, issues related to immigration have received a great deal of attention in the public media – via “60 Minutes” and Newsweek magazine, for example. Consequently, applications for non-immigrant professionals are receiving heightened scrutiny from the concerned agencies (INS and Dept. of Labor) in order to eliminate fraud and abuse of the regulations governing U.S. work authorization. One issue that is now being examined more carefully by the agencies processing H-1 related applications is the question of location – where will the services be performed or the employment take place? The geographic area where the job duties will be performed must govern the determination of prevailing wage for the proposed employment. If the employment involves performing work in more than one location, (whether the new work site is another establishment of the employer, or is the worksite of another entity such as a customer of the employer), the employer must meet the prevailing wage for the occupation in each geographic area where the period of employment for any H-1 worker will exceed 90 days. This may involve the submission of actual and prevailing wage information for several employment locations, and it also may require the filing of multiple Labor Condition Applications, and the posting of notices at each job site. Additionally, if an employee receives a promotion and/or there is a substantial change in job duties, a new LCA and prevailing wage determination must be done. Further, any H-1B non-immigrant employed under an LCA in a full-time capacity must be guaranteed full time wages during the entire validity period specified on the LCA, even if the H-1B non-immigrant is not engaged in productive work for employment-related conditions such a slack of work, training periods or other such reasons.
Within one working day of filing an LCA, certain records must be made available to the public upon request. These are: a copy of the LCA.
In addition to the public access documents discussed above, the company must develop and maintain payroll records for all employees with similar qualifications and experience in the position, throughout the period of employment. Such records should include:
The company must maintain this documentation for three years from the date of the creation of the records (or, if a complaint is filed, for as long as it takes to resolve the complaint). This documentation must be made available for Department of Labor examination immediately upon request. The public access file, due to the proposed DOL regulations of 1999, will most likely also require:
The law provides penalties for noncompliance. They include:
Investigations of possible violations will be undertaken by the Department of Labor if a complaint is filed or, under the ACWIA, proposed DOL regulations, upon a complaint, or upon certification by the Secretary of Labor that there is reasonable cause to infer the possibility of such violations and other statutory conditions are satisfied. Allegations leading the Secretary to such a certification must be put in writing, either by the “source” or by a DOL employee on behalf of the source, “[o]n a form developed and provided by the Secretary. The Department is developing this form, which like other DOL forms, will go through the normal Office of Management and Budget clearance process. When cleared, the form will be publicly available from Departmental offices and other sources. The 1999 DOL regulations state that if an employer obtains the prevailing wage from, and in good faith relies on, an independent authoritative source wage survey, DOL will not investigate unless it receives significant evidence that shows a prevailing wage which varies substantially from the prevailing wage attested by the employer. In contrast, if a prevailing wage determination is obtained from a SESA, DOL will not investigate the accuracy of that wage determination. If the employer dismisses an H -1B alien from employment before the end of the period requested and authorized by the petition, then the employer is liable for the aliens return transportation abroad. This provision is complaint-driven, and no penalty is included in the 1999 DOL regulations. There is also no express prohibition against an alien indemnifying the employer for this cost. If the alien leaves voluntarily, then the employer has no return transportation liability.
Once the LCA has been certified, it is important that you contact us if the alien does not begin to work, prematurely leaves employment with the company, or works reduced hours. We may consider withdrawing the certified LCA. Otherwise, the company will continue to bind by the wage, working condition, strike/lockout, and notice statements in the LCA. After the LCA has been certified, we will complete and file the H -1B petition with the INS. If the alien is inside the United States, the petition will normally include an application for change of non-immigrant status. If the alien is or will be outside the U.S., he or she will need to apply for an H -1B visa at a consulate. The visa application process is generally quite fast; most consulates issue such visas the same day or the next day following application.
On average, the processing of a H-1B visa petition is taking between four to six weeks.