H-1B Visa

The H-1B visa provides the authorization for foreign professionals to work for certain employers in the United States for six years (and even longer). The initial H-1B visa normally is issued for three years but can then be extended for at least another three years.

H-1B workers come from various backgrounds including:

• Engineers

• IT workers

• Scientists

• Teachers

• Accountants

• Medical technologists

• Logistics experts

• Business managers

• Statisticians

• Doctors

• Nurses

• Marketing professionals

• Anyone with a bachelor’s degree (or equivalent education and experience)

There are three requirements for H-1B eligibility:

1. The worker must have a bachelor’s degree in a specialty field (or equivalent training and experience).

2. The job normally must require that degree.

3. The employer must pay the H-1B employee a salary that is consistent with the average salaries paid for the occupation and consistent with the salaries paid to other workers in the company.

The H-1B visa process normally involves applications to four different US government agencies:

1. US Department of Labor. The employer will file a Labor Condition Application (LCA) 2 with the US Department of Labor. Approval of the LCA takes approximately one week.

2. US Citizenship and Immigration Services. The employer will file the H-1B petition with US Citizenship and Immigration Services (USCIS). Processing typically takes two weeks or so with “Premium Processing”.

3. US embassy or consulate. The employee will apply for the H-1B visa at a US embassy or US consulate. This process can take from one to six weeks, depending on the backlog at the embassy or consulate.

4. US Customs and Border Protection. The employee will present the H-1B visa at a US port of entry (international airport or land border) to obtain admission into the US

The Labor Condition Application was designed to ensure that the H-1B program does not displace the salaries and benefits of American workers.

There are four statements that the employer must make on the LCA:

1. The employer will pay the H-1B employee the Required Wage for the entire period of H-1B employment.

2. The employment of the H-1B worker will not have an adverse impact on the working conditions of other workers.

3. There is no strike or labor dispute in progress. (unionized professionals)

4. Notice of the LCA was given to the employer’s other employees (normally by posting notices at the place where the H-1B employee will work).

******Failure to comply with any of these LCA conditions can subject the employer to monetary and other penalties.

The H-1B petition essentially consists of:

• Filing fee

• H-1B petition form (Form I-129)

• Approved LCA
  

• Employer’s letter explaining the proposed employment

• Evidence of the employee’s qualifications and professional background (college degrees and transcripts)

The role of USCIS is to determine whether:

• Proposed employment normally requires a specialty college degree or equivalent education and experience

• Employee has that background

• It is likely that the proposed employment will take place as described

• The employer actually exists and can pay the offered salary (that is, whether it is a real job offer and not a fake)