The H-1B is a temporary employment visa. It may be issued for up to three years initially, and extensions can be obtained for a total of six years. An H-1B visa allows a person to work in a professional position for the company or business that files the application. It is only valid to work for the petitioning company. An H-1B visa may be issued for part-time employment, and an individual may have two H-1B visas to work for two companies. All of the time spent in the U.S. in H classification, regardless of employer, counts toward the six-year limit. There are certain exceptions recently enacted that allow for the extension of an H-1B beyond the six-year limit. You should speak to the attorney about this before advising anyone. In order to obtain an H-1B visa, the job must be a professional one. The Immigration and Naturalization Service (INS) considers a job that normally requires a bachelor's degree to be a professional position. The applicant must have a degree in a field which is related to the job?a person employed as a Software Engineer, for example, must have a degree in Computer Science or a related field. In limited cases, a person without a university degree can qualify for H-1B status. Experience, training and academic work may be combined to establish the equivalent of a four-year degree. In order to file the H-1B application, the company must have an approved Labor Condition Application (LCA). The H-1B application consists of an LCA approval notice, Form I-129, proof of the applicant's university degree (diploma and transcripts), a letter from the employer describing the job and setting out the terms of employment, a filing fee, and other supporting documents. The employer must also submit proof of ability to pay the offered wage, such as an IRS Form 941, income tax return or financial statement.
The H-1B application is filed by mail with the regional INS office. Processing times vary depending on the case load at the INS office. In some cases, the INS returns the application for more information. At present, it can take anywhere from eight to ten weeks after filing with the INS to receive approval for the H-1B visa, unless complications arise. When the H-1B is approved and the applicant is in the U.S., he or she will receive an approval notice. This approval allows the person to remain in the U.S. in H-1B status; it does not authorize re-entry into the U.S. If and when a person travels abroad, he or she will have to obtain an H-1B visa stamp at a U.S. Consulate in order to return to the U.S., unless the traveler is a Canadian citizen. A person traveling to Mexico or Canada for less than 30 days may re-enter the U.S. without a visa stamp, using his or her valid I-94 and current approval notice.
Before applying for a visa stamp, the applicant should check with the local consulate to determine the specific requirements. Most consulates require a valid passport, the approval notice and a copy of the I-129 application. A current employment letter is also required. The applicant should take original documents, such as the diploma, to present in the event the consulate requests to review the supporting documents. Our office will provide additional information for obtaining the visa abroad. An employee who already holds an expiring H-1B visa may apply for a new visa by mail through the Department of State.
Under the 1990 Immigration Act, a person no longer must have a permanent residence abroad in order to obtain an H-1B visa. Likewise, the fact that a labor certification or application for permanent residence is pending may no longer be a reason to deny an H-1B visa. This means it is less likely the H-1B visa will be denied by a U.S. Consulate. An employee who does not have valid practical training/employment authorization may not begin work until the H-1B has been approved. While an H-1B is employer specific under the new law, an employee on an H-1B with one company must only wait until the filing for a new H-1B before beginning work for a second employer. If the employee will work at any additional work sites, including technical support at customer sites, let us know. Special DOL rules apply to this situation.
Since the 1990 Immigration Act, employers are liable for reasonable transportation costs back to the H-1B employee's country of last residence if the employee is dismissed from the company before the expiration of the H-1B visa. If the employee voluntarily resigns, the company is not liable for these costs. The regulations regarding transportation costs lack an enforcement provision the employee must file a complaint with the Department of Labor, and the complaint is then placed in the employer's file. The regulations do not provide any other mechanism to force an employer to pay transportation costs.
A spouse and children can apply for H-4 dependent visas by a separate application, which can be filed concurrently with the H-1B application. A spouse or child who is on a different (but valid) nonimmigrant visa may remain on such visa and change to H-4 status at a later date as well.
H-1B PROCESS Step 1: Prevailing Wage Determination The ESC of North Carolina will determine the prevailing wage for a specified position in the geographical area of intended employment, based on the job description and the minimum education and experience required by the employer. The employer must pay the higher of 95% of the prevailing wage or the actual wage paid to other employees at the company who perform the same work and have the same qualifications.
After approval by the company, our office will submit a request for a prevailing wage determination to the ESC. The request is based on the job description provided by the employer, including education and experience requirements. Processing times at ESC fluctuate between one and four weeks, depending on the agency’s workload.
If the employee plans to file for permanent residence at a later date based on a labor certification, the minimum education and experience required for the H-1B position should generally be the same as those that will be later used in the labor certification. The special requirements can be refined for labor certification purposes.
Step 2: Labor Condition Application Once we receive a prevailing wage determination and confirm that the employee’s salary is satisfactory, we can submit the Labor Condition Application (LCA).
After review and signature by the employer, the LCA is submitted by our office to the Department of Labor (DOL). At that time, the employer is required to post notice of filing the LCA in two conspicuous places on the company premises. Our office will send the employer a copy of the LCA and a posting notice. At the time of posting, the employer must create a public inspection file which will contain: the LCA, prevailing wage determination, an actual wage memorandum explaining the methodology used to set the actual wage paid to the H-1B employee and similar employees (we will provide a sample), proof that the employee is paid the higher of the prevailing wage or the actual wage, and proof that the employee was given a copy of the approved LCA.
We will send the employer a copy of the certified LCA when DOL returns it to us. The employer must provide the employee a copy of the certified LCA on or before the date she or he begins employment in H-1B status. The employee must sign a written verification that she/he has received a copy of the certified LCA; the employer keeps this verification in the public inspection file.
Step 3: INS Application Upon receipt of the certified LCA, we are able to submit the H-1B application to the Immigration and Naturalization Service (INS) regional service center. Processing times usually vary from eight to ten weeks, depending on the service center workload. The services own estimate is currently 60-90 days. Upon receipt of the approval notice, we will notify the employer so that the company can change the I-9 form to reflect the employees status.