H-1B TEMPORARY WORKER

Basics

The most common temporary work visa is the H-1B, which is typically available to anyone who (a) has a minimum of a bachelor’s degree (or its equivalent) in a particular field and (b) will work in an occupation that requires at least a bachelor’s degree in that field, or a closely related field.  The H-1B visa is employer-specific -- it allows the beneficiary of the visa (the foreign national) to work only for the employer specified in the visa petition.

If the foreign national is in the US in valid visa status (i.e., has not overstayed his or her visa and has not ever worked without authorization from USCIS), he or she may be eligible to obtain H-1B visa status to work for a sponsoring employer without having to leave the country. If the employee is working for another H-1B employer, he or she may typically begin to work for the company as soon as the new employer's petition is filed with the BCIS.

If a person is “out of status”, the company may file an H-1B petition on behalf of the individual with the USCIS, but the person will likely be required to leave the US to apply for an H-1B visa at a United States Consulate or Embassy outside of the US before being able to work legally for the H-1B petitioning employer. The H-1B candidate may not apply for a visa at a US Consulate until the Consulate has received a copy of the USCIS approved H-1B petition (Form I-797).

H-1B visas are valid for an initial period of up to three years and extensions are permitted for up to a total of six years.  However, if the foreign national previously worked in H-1B or L-1 visa status for one or more other employers before coming to the company, that time will be deducted from the total period of stay in H-1B status available to the foreign national.  For example, if the person had four prior years of experience at another company in H-1B status, he or she would only be qualified for an additional two years of H-1B status time.  A new six-year period is available to a foreign national who spends twelve consecutive months physically outside of the US  It is also possible to extend the six-year period if the employee has progressed to a certain point with a green card case.  For example, H-1B status may be extended beyond six years where 365 days have passed after the filing of an alien labor certification application and/or an immigrant visa petition on behalf of the employee.

NOTE: There are only a certain number of H-1B visas available in each fiscal year.  It is common for the USCIS to run out of visas before the end of the fiscal year.  In fiscal year 2004, for example, the USCIS ran out of visas after just four months.  That meant that NO ONE could get a new H-1B visa for eight months!  Be sure to apply for the H-1B as soon as possible to increase your chances of getting an H-1B in a timely fashion.

Procedure

Obtaining an H-1B visa consists of two steps: (1) filing a Labor Condition Application with the Department of Labor (DOL) and complying with the requirements associated with that application; and (2) filing the visa petition and supporting materials with the USCIS.  If the person is outside the US, there is a third step consisting of obtaining an H-1B visa from a Consulate or Embassy (except for Canadians, who are visa exempt).

The certified LCA can generally be obtained in a matter of minutes on-line. It generally takes about 8-12 weeks to obtain the H-1B approval notice (although this estimate varies over time). The processing time of this second stage can be reduced to one to two weeks by paying a supplemental BCIS filing fee of $1000. These times are subject to change depending on the volume of work at USCIS Service Centers and USCIS resource allocation. If a visa is required from a Consulate, one to seven days should be added for that step (depending upon the US Consulate at issue).

Spouses and children under 21 years of age of H-1B candidates are eligible for H-4 visas to come to the US but may not work without their own separate work authorization.

STEP ONE:
The Labor Condition Application Requirement

The Labor Condition Application (“LCA”) must be filed and certified by the Department of Labor (“DOL”) before the H-1B visa petition may be filed with the INS.

The LCA requires the employer to state the occupational code, job title, salary, prevailing wage, period of employment, and locations of all worksites where the work will be performed.

It also requires that the employer attest that the H-1B employee will be paid the higher of either the actual wage (the wage paid to employees in the same job category as the alien) or the prevailing wage for the position. The prevailing wage is defined as the average wage rate paid to workers similarly employed by other employers in the specific geographic area where the work is to be performed. It is acceptable and permissible under the law to pay within 5% of the prevailing wage. ILG will perform the prevailing wage calculation for the company.

On the LCA, the company must also attest that (1) there is no strike or lockout at the facility, (2) that the foreign employee and US workers in the same job at the same facility will enjoy prevailing working conditions, (3) that the LCA is posted in two conspicuous locations at the place of employment for ten business days, (4) that it is offering the foreign employee benefits equal to those offered to other employees, and (5) that the foreign employee will receive the higher of the local wage or actual wage for similarly employed workers at the worksite.  There is also a Public Inspection File Requirement associated with the LCA, the requirements of which will ILG will ensure that the employer meets. 

STEP TWO:
The H-1B Visa Petition

After the LCA is certified by the DOL, the H-1B petition may be filed with the USCIS. The petition consists of visa petition forms, a supporting letter from the company, and documentation regarding the foreign national’s educational background, employment and visa history.

If the H-1B candidate is currently working in the US in H-1B status for another employer, he or she may begin working for the new company as soon as it has been confirmed that the new H-1B petition has been received by the USCIS. Ideally, the candidate should not stop working for the previous employer until the new H-1B petition is filed, although small gaps or a week or two are not generally problematic.

STEP THREE:
Obtaining Visa at Embassy or Consulate

Some employees will need to obtain an H-1B visa at an Embassy or Consulate outside the US before they may begin work with the company. We will advise you when this is necessary. This step of the process involves submitting the BCIS approval notice, the underlying materials and a simple nonimmigrant visa application, with filing fee, to the consular officer. Within one to seven days of the filing, depending on the Consulate at issue, the person will be issued an H-1B visa in his/her passport that may be used to enter the US to begin work.

Persons who already have an H-1B visa stamp in the passport may be able to have the visa renewed in the US through the Department of State. The process may take up to three months and the applicant must be prepared to give up the passport for the processing period (although it can be returned within 1-2 days in case of emergency).

 

DISCLAIMER
ILG has prepared this site as a public resource for informational purposes only, and not as advertising, solicitation or legal advice. It is intended, but not promised or guaranteed, to be correct, complete and up-to-date. Readers should not act upon this information without first seeking professional counsel. Remember that communications are not privileged until the client and lawyer have agreed upon legal representation.