How to Sponsor an Individual for an H-1B Visa

Jan 9, 2017
LIKE SAVE PRINT
Reuse Permissions

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:

  • Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position.
  • The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:

  • Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university.
  • Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation.
  • Hold an unrestricted state license, registration or certification that authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
  • Have education, training or progressively responsible experience in the specialty that is equivalent to the completion of such a degree (generally three years of work experience or training in the field may equate to one year of college), and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

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:

  • The number of H-1B nonimmigrants the employer seeks to employ.
  • The occupational classifications in which the H-1B nonimmigrants will be employed.
  • The wages offered.
  • The period of employment.
  • The locations at which the H-1B nonimmigrants will be employed.
  • The following statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

Worker notification must be done in one of the following ways:

  • When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide such notice to that collective bargaining representative via a copy of the LCA or other document that includes all items listed above.
  • When there is no collective bargaining representative, the employer must provide the items listed above by either of the following:
    • Hardcopy worksite notice. Posting the notice of the filing of the LCA (or the information therein) at two conspicuous locations at the place of employment for 10 days. Appropriate locations for posting the notice include near Wage and Hour Division notices or Occupational Safety and Health Administration notices.
    • Electronic notice. Electronically providing the notice of the filing of the LCA to all workers at the place of employment for 10 days. If an employer chooses to provide notice electronically, the employer must electronically notify all employees at the place of employment in the occupational classification for which H-1B workers are sought. This notice may be provided by sending individual e-mail messages, by posting on an appropriate electronic bulletin board or by using other appropriate methods.

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:

  • The employer will pay the beneficiary a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the visa holder will be working.
  • The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer's place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

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.

Applicable fees

Various fees are associated with filing Form I-129, some of which apply only to certain employers:

  • Form I-129 base filing fee: $460.
  • American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B of the I-129 form):
    • $750 for employers with one to 25 full-time equivalent employees, unless exempt.
    • $1,500 for employers with 26 or more full-time equivalent employees, unless exempt.
  • Fraud prevention and detection fee: $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers.
  • Public Law 114-113: $4,000 to be submitted by a petitioner that employs 50 or more employees in the United States in which more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status. The fee must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers.
  • Premium processing service fee: $1,225 for employers seeking premium processing service.

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:

  • Form I-907 (if filing for premium processing service).
  • Form G-28 (if represented by an attorney or accredited representative).
  • Form I-129, Petition for a Nonimmigrant Worker.
  • Addendums/attachments.
  • H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions).
  • H-1B Data Collection and Filing Fee Exemption Supplement.
  • All supporting documentation to establish eligibility.
  • A table of contents for supporting documentation; tab items as listed in table of contents:

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. 


Express Requests

The HR Knowledge Center has gathered resources on current topics in HR management. Click here to view and request information.

LIKE SAVE PRINT
Reuse Permissions

SHRM WEBCASTS

Choose from dozens of free webcasts on the most timely HR topics.

Register Today

Job Finder

Find an HR Job Near You
Post a Job

SPONSOR OFFERS

Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 3,200 companies

Search & Connect