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The intent of the H-1B visa provisions is to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce for certain specialty occupations by authorizing the employment of qualified individuals who are not otherwise authorized to work in the United States. The visa is valid for up to three years, renewable for an additional three years, for a maximum of six years.
The U.S. Citizen and Immigration Services (USCIS) defines a specialty occupation as one that requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties).
Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption (qualifying nonprofit research institutions are exempt from this cap). The USCIS generally takes three to six months to process a request, but employers may choose to expedite the process by paying for premium processing, which guarantees the USCIS will adjudicate the petition within 15 days.
This guide outlines the steps an employer would take to petition the USCIS for approval to hire an H-1B worker.
Step 1: Review the Job Description to Ensure It Qualifies as a Specialty Occupation
The job qualifications must meet one of the following criteria to qualify as a specialty occupation:
When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:
Step 2: Determine the Rate of Pay for the Position
The H-1B employer must pay its H-1B workers at least the "required" wage, which is the higher of the prevailing wage or the employer's actual wage (in-house wage) for similarly employed workers. This wage rate must be reported on the labor condition application (LCA).
Although the regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. An employer filing an LCA may, but is not required to, search for prevailing wages through the Office of Foreign Labor Certification's (OFLC) National Prevailing Wage Center (NPWC) (by U.S. mail) or through the iCERT Portal System. An employer may also consider a wage rate set forth in a collective bargaining agreement (CBA) in determining the prevailing wage. If the job opportunity is in an occupation not covered by a CBA, an employer may consider the following:
Step 3: Notify the U.S. Workforce
Notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA with the U.S. Department of Labor (DOL). This notice must meet the requirements of 20 C.F.R. §655.734. A copy of the completed LCA can serve as the notice, but it is not required to be posted as long as all the required information is posted. Required information includes:
Worker notification must be done in one of the following ways:
Step 4: Submit Labor Condition Application (LCA/Form 9035/9035E) to the DOL for certification
The employer must apply for and receive DOL certification of an LCA no more than six months before the initial date of intended employment. An employer's LCA must list all the places of intended employment that are identified at the time of filing. There is no fee to apply for an LCA.
This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
LCAs must be filed electronically with the DOL through the iCERT System.
The two exceptions to electronic filing are business owners with physical disabilities or employers that lack Internet access and cannot electronically file the LCA through the iCERT System. An employer must petition the Administrator of the OFLC for prior special permission to file an LCA by mail on the ETA Form 9035.
LCAs are reviewed by the DOL within seven working days for completeness and obvious errors or inaccuracies.
Employers may check the status of applications that they have submitted to the DOL and directly access their certified applications at any time by logging into the iCERT System.
Step 5: Submit Completed Form I-129 to USCIS
Once the LCA is certified, the employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center (see the I-129 Direct Filing Chart for correct addresses). The DOL-certified LCA must be submitted with the Form I-129. See the Form I-129 instructions for additional filing requirements.
Various fees are associated with filing Form I-129, some of which apply only to certain employers:
Completing the petition packet
A separate check for each applicable filing fee (Form I-129, premium processing, fraud fee, ACWIA fee and Public Law 111-230) is preferred. Applicable fees should be stapled to the bottom right corner of the top document.
The preferred order of documents at the time of submission is the following:
Employers should provide a duplicate copy of the petition, if necessary, and the duplicate copy of the petition should be clearly identified as "COPY" so that it is not mistaken for a duplicate filing.
Step 6: Prospective Workers Outside the United States Apply for Visa or Admission
Once the Form I-129 petition has been approved, the employer will receive a Form I-797 Notice of Action declaring the petition approved. The prospective H-1B worker who is outside the United States may then take a copy of the Form I-797 to apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa. The prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Once the worker arrives in the U.S., the employer follows normal Form I-9 and other hiring procedures.
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