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H-1B Visa

Probably the most well known type of employment visa is the H-1B.  This is for workers in a “specialty occupation” coming to the U.S. to work for a temporary period of time.  It is unique in that it is a temporary visa, but can lead to lawful permanent residency (getting a green card).  There is much confusion surrounding the H1-B process, but it is actually not as daunting and complex as many people believe it to be.

Who Can Get an H-1B?

The Immigration and Nationality Act allows employment of foreign workers in certain specialty occupations (generally those requiring a bachelor’s degree or its equivalent). Foreign workers such as engineers, teachers/professors, computer programmers, medical doctors, physical therapists, and even fashion models may be employed under an H-1B visa.  What constitutes an H-1B “specialty occupation” is not explicitly limited by job title.   Generally speaking, the law requires the job to involve the “application of a highly specialized body of knowledge” and the attainment of a bachelor’s or higher degree or its equivalent in the specialty field.  In addition, the nature of the job duties must require the knowledge and skills associated with the bachelor or higher degree.  In other words, a person who has an engineering degree cannot use that degree to get an H-1B for a job as a chef.

What is the Process?

Step 1, Prevailing Wage Determination:

The U.S. Department of Labor (“DOL”) maintains a list of the “prevailing wage” for each type of occupation.  Prior to proceeding with an H-1B, you must confirm that the proposed salary for the job falls within the prevailing wage for the occupation and location.   The Foreign Labor Certification Data Center maintains the list  against which you must check your job title and salary to be sure it meets or exceeds the prevailing wage.

Step 2, Labor Condition Application to the DOL:

The employer who has offered you a job must file a Labor Condition Application (“LCA”) with the DOL.  This process is completed online, and is a certification of certain things by the employer.  The employer is attesting that you will receive the same wages, working conditions, and comparable benefits as U.S. workers, that the employment of the foreign worker will not adversely affect the conditions of similarly situated U.S. workers, and that the employer is not currently involved in a labor dispute involving a worker lockout or strike.

Step 3, Posting of the LCA:

Upon filing the LCA, the employer must give notice to its employees.  If the workers are unionized, the notice must be provided to the employee bargaining representative(s).  If there is no union, then the notice of filing must be posted in two conspicuous locations in the place of employment for ten consecutive business days.  In some instances, “electronic” posting (on a company’s intranet or via email) can suffice.  However, the posting must occur in the job-site where the employee will be working, so there are specific requirements for posting where the company maintains multiple offices or the employee will be working off-site.   Employers must take great care to comply with the posting requirements, as the penalties can be severe.

Step 4, Filing of the H-1B Visa Petition:

Once the LCA has been approved and proper employee notice given, the employer files an H-1B visa petition on Form I-129 to US Citizenship and Immigration Services (“UCSIS”) along with the supporting evidence.  This evidence generally includes:

  • Copy of approved LCA;
  • Copy (and translation) of all higher education degrees and transcripts;
  • Copy (and translation) of awards received;
  • Copy of your entire passport;
  • Copy of your I-94 card (if in the U.S.);
  • Copy of current resume/CV;
  • Copy of tax returns and W-2’s (if in the U.S.);
  • Copy of birth certificate; and
  • Two passport-style photographs of the employee.

There may be additional documentation required, depending on the specific job or whether the employee is transferring from another visa to an H-1B.

Step 5, Approval and Job Commencement:

If everything is on the up and up, the petition will be approved and the employee can commence working on or after October 1 of the cap year of the visa filing.  This has important consequences if the employee is currently in the U.S.  and it is not yet October 1.  The employee must always maintain lawful status, meaning that if the employee’s current visa is set to expire prior to October 1, the employee must depart the country and reenter on the H-1B for the October 1 start date.

What are the Filing Fees?

Basic fees

The fees for an H-1B can vary.  The basic fees are:

  • I-129 Petition fee: $325
  • An American worker training fee (“ACWIA”) fee of $750 for employers with 1 to 25 full-time employees or $1,500 for employers with 26 or more employees;
  • Fraud prevention fee: $500

Total basic fees therefore amount to $1,575 for employers with 25 or less employees and $2325 for employers with 26 or more empoyees.

Other potential fees

To have the application processed quickly, the employer can also pay a “premium processing” fee, which is currently $1,225.  This permits the employer to obtain an answer on the petition usually in about two weeks, rather than the approximate two month waiting period.

There is also a $2,000 fee required if, and only if, the employer currently employs 50 or more employees and half or more of those employees are currently on an H-1B or L-1 visa.

What About this “Cap” Thing I Keep Hearing About?

Each year, Congress only allocates a certain number of H-1B visas that can be made available.  Once USCIS has approved the maximum allowable visas for the current year, USCIS will not issue any more visas, and the employer and employee will have to wait until the following fiscal year.  Each year’s fiscal year application process begins on April 1.  For example, USCIS began accepting petitions for the fiscal year 2012 on April 1, 2011, with employment to begin on October 1, 2012.  In fiscal year 2012, 65,000 visas were made available.

In the past few years, the number of applications received by USCIS on April 1 exceed the number of visas available.  Therefore, USCIS has implemented a lottery system to select which applications visas are made available.  If your application is not selected, you will be deemed ineligible for an H-1B visa.  Therefore, ensuring that your application is submitted to USCIS on April 1 is essential.

To check the status of the current fiscal year’s cap, follow this link.