The foreign worker:
A nonimmigrant in the H-1B category is an alien who
is coming temporarily to the U.S. to perform services
in a "specialty occupation". The alien is qualified
through the appropriate degree, or through a combination
of education and experience equivalent to that degree.
The worker may be entering the U.S. for the first time
or may already be working in the U.S., but pursuing
a change of employer.
The foreign worker must prove that he or she is qualified
for the specialty occupation and the particular job
offered. One method is to obtain a credentials evaluation
of their foreign university degree, to show that it
is equivalent to that of a U.S. degree.
If the worker is already in the U.S. and holds a valid
nonimmigrant status, the H-1B visa can be extended and
revalidated in the U.S. If, on the other hand, the worker
is not in lawful status, or resides abroad, the H-1B
visa must be obtained through a U.S. Consulate.
Since the H-1B visa is considered a temporary visa,
there is a limitation on periods of stay. The initial
periods of stay may be approved for up to 3 years (usually
depending on the occupation and/or the needs of the
employer). And after that, another 3 years are available,
by filing forms for and extension of stay. After the
six years, the worker must spend one year outside the
U.S. before being entitled to another H-1B visa. However,
many workers take steps to obtain permanent residence
(the Green Card) during their initial stay.
Dependents of H-1B workers (spouses and children under
21) may be granted an H-4 visa. Dependents with an H-4
visa are not permitted to work in the U.S.
The employer of a foreign worker:
To qualify as a U.S. employer, the employer must have
a U.S. taxpayer identification number.
When hiring an H-1B worker, the employer must file
a Labor Condition Application (LCA) with the Department
of Labor (DOL). This application requires the employer
to describe the position and the salary, as well as
attest to facts concerning the wage, working conditions,
labor conditions and the giving of notice of the employment.
Once the LCA is approved, the employer then submits
an I-129 Petition for nonimmigrant worker, along with
related forms and supporting documents, to the Immigration
and Naturalization Service (INS). This form documents
that the job requires the services of a person in a
"specialty occupation", and provides documentation that
the worker does, indeed, qualify for the job offered.
The employer of an H-1B worker has certain responsibilities
to meet. Once the I-129 is approved, the employer must
maintain wage and hour records, as well as information
concerning working conditions for similarly situated
employees. Upon request, these records must be provided
to DOL's Wage and Hour Division. If the appropriate
records are not maintained, the employer could be liable
for substantial penalties and fines, even lose the right
to apply for immigrant and nonimmigrant visas for up
to one year.
If the worker is terminated any time during the approved
period of stay on the I-129, the employer is responsible
for paying for the worker's return transportation to
his or her foreign residence.
1. Information/Documentation needed from the foreign
worker ‚ this is what we need from the foreign worker
in order to process his/her H-1B visa. There may be
items that the foreign worker does not have or is not
familiar with. Those items are not applicable and can
be ignored/skipped.
If Spouse and Children are residing in the U.S. at
the time we file for the foreign worker's H-1B visa:
items listed are needed in order to process their H-4
visas.
If Spouse and Children are overseas when we file the
H-1B, there is not paperwork for us to file here in
the U.S. Spouse and Children must appear at a U.S. Embassy
to apply for an H-4 Visa.
2. Information/Documentation needed from the Employer
‚ this is what we need from the employer in order to
process an H-1B visa. Once an employer is established
with us, we only need the information specific for each
potential new employee such as job title, detailed job
description, salary offered, etc.
Once the Prevailing Wage Determination is obtained...the
ETA 9035 - Labor Condition Application (LCA) can be
completed and posted at the work site (to be left up
for 10 consecutive days in two conspicuous places).
As soon as the LCA (or a notice of the filing) has been
posted, we can then file the LCA with the Department
of Labor. In approximately 10 - 14 business days, the
approved (certified) copy of this form will arrive in
our office. We will fax a copy of the filed form to
the employer, with instructions about giving a copy
of the LCA to the (prospective) employee.
As soon as we receive all the information/documentation
from the foreign worker and the employer, and while
we wait for the approved LCA, the paperwork for the
petition can begin. When the all information has been
transferred onto the INS (Immigration and Naturalization
Service) forms, authorized signatures are obtained.
When all forms are signed and the certified LCA arrives,
all is packaged and sent to INS.
Credentials Evaluation (Education/Work):
If an education credentials evaluation was not obtained
as a part of a licensure requirement (as in the rehab
professions), many times, the INS requires that an evaluation
of the foreign workers credentials be performed and
added as supporting documentation to the visa application.
This evaluation is done to make sure that the foreign
worker's degree is equivalent to a U.S. degree. If an
evaluation has not already been completed, we must have
good, readable copies of the foreign worker's degree
certificate(s), transcripts or mark sheets, any professional
development course certificates and translations of
any documents that are not in English.
The more information provided to us, the faster the
education evaluation may be performed. Usually the cost
for an education evaluation is approximately $125.00,
however in some cases it may cost more.
The credentialing process usually takes approximately
2 weeks to complete and is customarily performed at
the same time that the Department of Labor is processing
the LCA. Therefore, the credentialing process normally
does not delay a file.
Approximately 4 - 8 weeks:
In approximately 14 - 21 days after mailing the I-129
Petition to INS, a "Receipt Notice of Action", form
I-797, is received in our office. This means that INS
has received the file and is beginning to process it.
If this notice is not received in at least 21 days after
mailing, we will investigate. If INS is satisfied with
the file, they will send an "Approval Notice of Action",
form I-797, usually within 14 - 36 days of the Receipt
Notice. If we do not hear anything after 36 days, we
will investigate!
Occasionally, between the Receipt Notice and the Approval
Notice, a letter from INS may be received requesting
more information or clarification of a fact. With the
employer's cooperation and/or the cooperation of the
foreign worker, we simply comply with their request.
If this happens, it can delay the process another 10
-14 (or more) days.
Additional information that may be helpful during the
hiring process:
General questions that may be asked of the foreign
workers during an interview to qualify a potential employee's
immigration status.
General immigration terms that may be encountered during
the immigration process.
When the Approval is received - Final Step!
If the foreign worker is residing in the U.S. and has
maintained valid immigration status, he or she may now
go to work for the new employer.
If the foreign worker is outside the U.S., they may
now go to the U.S. Embassy listed on the I-129 Petition
to have the visa issued and stamped, after which, they
may enter the U.S.
Please note that there are many, many situations and
types of visas that a person could experience. The above
information will hopefully give you a brief overview
of the most common things you will need to know before
applying for the H-1B visa. Anytime you have questions
about a particular situation, contact an immigration
attorney.
