H-1B Season

This is a great month to discuss the H-1B visa process since this is the time to prepare H-1B visas. Here is the general process for the H-1B:

1. Offer & Acceptance of H1B Job – H1B Sponsoring Company files a petition on your behalf.
An employer can be an individual, partnership or corporation or other legal business entities. Applications are “job specific.” If your situation changes (for example, you lose your job or change locations), your new employer must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
a. Specific information addressing the positions held
b. The exact duties of the position
c. The exact dates of employment
d. Information regarding the supervisors and co-workers of the beneficiary.

2. The ‘Prevailing Wage’ and actual wage must be determined and compared. The H1B sponsoring company is required to pay the higher of the two.
The prevailing wage is determined by the State Employment Security Agency by completing a special form, which asks the employer for the responsibilities, skills and experience needed for the job. The actual wage is determined by comparing other workers in the same positions with the same level of experience.

3. File the Labor Certification Application (LCA).
This form contains information about the H1B Sponsoring Company. By completing and signing the form, the sponsor company is agreeing to pay the higher of the two wages, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. Recently, Congress determined that H1B sponsor companies must attest that they will offer H1B visa holders the same benefits as their other workers. This includes health, life, medical, retirement, stock options and bonuses. The Labor Certification Application is usually filed electronically.

4. When the LCA is approved, the Department of Labor (DOL) will return a certified copy to the H1B sponsoring company.

5. The sponsor company must post notices at two conspicuous places at their business of the H1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
You can use the LCA form for the actual posting. After the Department of Labor accepts the LCA, then your employer can file your H1B visa petition.

6. H1B Petition assembled & filed with appropriate USCIS Service office.
The filing must include the required forms, fees, documents and information; education & experience evaluation & documents, training certificates, professional memberships, resume, employment agreement and letter of support.

7. Wait for the H1B petition to be processed.
Processing times vary depending upon service center and the visa. It could be a few months wait or longer. If the H1B employer can show a substantial need for the employee, USCIS might approve the petition sooner. Employment cannot begin, however, until USCIS has issued the appropriate visa.