H-1B Visas

The H-1B program was developed to allow U.S. employers the opportunity to bring foreign workers to the United States as employees in a specialty occupation. How the government defines “specialty occupation” is not always clear, but typically, the employment will need to be for a professional position requiring a bachelor’s degree or higher in the area employment. H-1B qualifying professions may include engineers, software designers and scientists amongst others.

The H-1B is considered a nonimmigrant visa, but it is one of the few visas allowing for “dual intent.” In other words, the beneficiary of an H-1B visa may possess the intent to one day reside permanently in the United States. If the employer decides to file the necessary paperwork, or if the visa holder marries a U.S. citizen, he or she may be able to adjust status to that of a lawful permanent resident (LPR). Even so, the H-1B requires a sponsoring U.S. employer. An individual cannot obtain status alone, no matter how qualified.

There is a cap on the number of H-1B visas the government can issue each fiscal year, although some visa applications may be cap exempt. Presently, that cap is 65,000 with an additional 20,000 under the H-1B advanced degree exemption.

The U.S. government will accept cap subject H-1B applications no sooner than six (6) months in advance of the requested start date, which can be no sooner than the start of the fiscal year, October 1st. Therefore, applications may not be submitted prior to the first business day of April in any given year.

Typically, an H-1B will be approved for a period of three years. An H-1B visa holder can be present in the United States for a maximum continuous period of six (6) years unless an extension is granted. Once the H-1B expires, the foreign worker will be required to leave the United States for a period of one year before another H-1B can be approved.

To begin the process of applying for an H-1B visa, a U.S. employer must submit a completed Labor Condition Application (LCA) with the Department of Labor (DOL) using Form ETA 9035E. By completing and signing the LCA, the employer is agreeing to follow the law and regulations with regards to wages, benefits and working conditions provided to both U.S. and nonimmigrant workers. The intent is to prevent U.S. employers from using the program solely to bring in cheap foreign labor.

It is the responsibility of the employer to make the LCA and supporting documents available for examination at both the employer’s principal place of business and the nonimmigrant’s place of employment within one working day of filing the LCA with the DOL. Furthermore, the employer must maintain documentation to prove the validity of statements made in the LCA in the event anything is challenged. In other words, hold on to the LCA and have it ready if the government asks for it.

Prior to filing the LCA with the DOL, the employer must determine the prevailing wage for the position using a DOL-approved method, including requesting an OFLC National Processing Center determination or using the OFLC Online Data Center.

The employer must then inform all U.S. workers of the intent to hire a foreign worker by posting the completed Form ETA 9035E. The posting must occur within the thirty (30) day period preceding the date the Form is submitted to the DOL.

The good news is that an employer can post in one of two ways; by hard or electronic copy. If posting by hard copy, notice must either (1) be given to the bargaining representative for workers in the occupation in question; or (2) if there is no bargaining representative, the notice must be posted in at least two conspicuous locations at the place of employment. Postings can also occur electronically via e-mail, website, or whatever electronic method the employer typically uses to communicate with employees. A copy of the LCA must be given to each nonimmigrant worker.

After determining the prevailing wage and posting the LCA, the employer must file with the DOL electronically. Assuming no information was left out, or the DOL has everything required, a response should be received within seven (7) days.

Once the DOL gives its stamp of approval, the employer can proceed with filing the H-1B application with the United States Citizenship & Immigration Services (USCIS). This is accomplished by filing a Form I-129 “Petition for a Nonimmigrant Worker.” Together with the I-129, the employer will need to complete and submit the H Classification Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement.

A well-organized application packet would also include a table of contents, the DOL approved LCA, evidence of the intended nonimmigrant worker’s educational background, a duplicate I-129 packet if the nonimmigrant employee is residing outside of the United States at the time of filing, the nonimmigrant’s I-94 if he or she is present in the United States, the SEVIS I-20 if the nonimmigrant is in F-1 or F-2 status, the SEVIS DS-2019 if in J-1 or J-2 status, all necessary fees paid by separate checks or money orders and, if premium processing is desired, the I-907 amongst other supporting documents such as birth certificates, passports and diplomas.

As of March 13, 2012, the fees necessary for filing are $325.00 for the I-129, a $500.00 fraud protection and detection fee, a $1,225.00 premium processing fee (if desired) and a fee required by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) of $750.00 for employers with 1 to 25 full-time equivalent employees or of $1,500.00 for employers with 26 or more full-time equivalent employees. In addition to the above fees, employers of more than 50 employees in the United States where more than 50 percent are in H-1B or L-1 status must pay another fee of $2,000.00. By law, employers must pay these fees, not the prospective H-1B beneficiaries. Likewise, employers should not require their nonimmigrant employees to reimburse them for having paid the government fees.

Unless the premium processing fee is paid upon filing, the government will probably take between 80 to 180 days to respond to the I-129. If the premium processing fee is paid, the government will respond within fifteen (15) days. A response may include approval, denial, or a request for more information.
Petitions submitted by schools and non-profit organizations or subsequent petitions, requests for an extension of stay and petitions to correct USCIS error may be exempt from the ACWIA fee.

H-1B visa holders are allowed to bring their spouse and children (under the age of 21) to the United States in H-4 status. Those in H-4 status may reside in the United States as long as the H-1B visa holder maintains valid status.

For more information, take a look at the DOL and USCIS websites on H-1Bs.

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