This is part three of a four-part immigration law series.
Getting the Visa: A Three-Step Process
The visa process has three distinct steps. First, the employer must apply to the Department of Labor for approval of a Labor Condition Application. Once that is approved, the employer files a petition with the USCIS requesting H-1B classification for the employee. The third step is when the employee must apply at a U.S. Consulate to have placed in their passport for admission into the United States.
The Department of Labor’s Certification
The employer must file a Labor Condition Application (“LCA”) with the U.S. Department of Labor for certification. The purpose of the LCA is to protect U.S. workers by allowing the Department of Labor to evaluate whether the hiring of a foreign national will have an adverse impact on wages or working conditions. Through the LCA certification, the employer attests that the following conditions will be met:
- Wages: The employer will pay the local “prevailing wage” rate to the foreign worker. The prevailing wage is the greater of:
- Actual wage rate paid to other individuals with similar experience and/or qualifications performing similar duties for the employer; or
- The prevailing wage rate for the job in the geographic area that considers the wages of other area workers.
- Working Conditions: The foreign worker will not adversely affect the working conditions of similarly employed workers in the geographic area.
- Strike, Lockout or Work Stoppage: At the date of the filing there is no strike, lockout or work stoppage applicable to the foreign worker’s job classification.
- Notice: The employer will provide notice of LCA filing to its employees or the union representative at the place of employment.
The employer must post two notices at each location where services will be performed.[x] The notice must include a statement about how to file a complaint with the Department of Labor regarding LCA violations. The required posting time is ten consecutive days.[xi] One notice must be posted next to the required government wage and hour postings. The other notice must be placed in an area of general circulation, accessible to all employees. Employers must note the dates the notices were posted and removed, and sign both postings.
Employers must also maintain a file that is available to any interested party upon written request.[xii] This is commonly known as the “public access” file. The file must contain the following:
- Certified LCA and documents concerning the actual wage offered to the foreign worker;
- Notices of LCA filing;
- Prevailing wage information describing the source of the wage determination, including a copy of the documentation the employer used to establish the “prevailing wage”; and
- A summary of the benefits offered to U.S. workers in the same job classification as the foreign worker.[xiii]
Additional documentation must also be made available to the DOL upon request. This can include payroll records and other information related to the prevailing wage. All of this documentation must be maintained by the employer for the life of the LCA and one year thereafter.[xiv]
The H-1B Petition
The employer must file a “Petition for a Nonimmigrant Worker” with one of the USCIS’ two regional service centers based on jurisdiction over the place of employment. The petition, and detailed instructions on filing it, is available at uscis.gov. The following is a full list of the documents that must be filed:
- Form G-28, Notice of Entry of Appearance of Attorney, if the employer is represented by counsel;
- Form I-129, Petition for Nonimmigrant Worker, plus the H visa supplement and Data Collection Form;
- The certified LCA;
- Filing Fee for the H-1B visa petition;
- Foreign national’s passport (which must be valid for at least 6 months);
- Diploma or transcript demonstrating attainment of bachelor’s level degree in a field which requires specialized knowledge (a translation is required if the document is not written in English);
- Documentation of prior experience in a field requiring specialized knowledge;
- Documentation of lawful status during all prior periods of stay in the U.S. (petition will be denied if employee cannot show all prior periods of U.S. stay were legal- the employer should verify such grounds for denial do not exist); and
- Documentation of employer’s viability as a continuing business and ability to pay the prevailing wage rate (both gross and net income figures may be required).
Upon receiving all of this information, the USCIS generally takes 120 to 180 days to fully process an H-1B petition.
In some situations, waiting four to six months is not feasible. In those cases Premium Processing is available. Payment to the USCIS of an additional $2,500 filing fee will facilitate expedited review within fifteen days of receipt of the visa petition. Premium Processing does not guarantee that an H-1B visa will be granted within fifteen days. However, the USCIS will refund the Premium Processing fee if it does not initially review the petition within fifteen days of receipt.
Approval and What Comes Next
After all this work, and if everything was in order, the petition will be approved. Generally, an H-1B visa is issued for an initial three year period. At the end of that period, another three year stay is normally available, with a maximum of six consecutive years in H-1B visa status.
If the foreign national is already in the U.S., but in a different status (i.e., student), he or she may apply for and be granted a change to H-1B status. So long as the person has maintained lawful visa status in the U.S. and never worked in the U.S. without authorization, a change of status to the H-1B visa should be granted.
Employers Shouldn’t be Standing on the Sidelines
Not knowing how to play the immigration game can be costly to U.S. companies. For example, foreign-born scientists and engineers are critical to the U.S. The National Science Board previously reported that the foreign-born compromised over 40% of all scientists and engineers in the U.S. with a doctorate degree and over 30% of those holding a masters degree. Similar significant numbers of foreign-born are found in other professional and technical fields. So get into the game – standing on the sidelines is no way to play.
Questions about this topic may be directed to any member of the Miller Johnson Immigration Law Practice Group.
[x] 20 CFR §655.734(a)(1)(ii)(C)
[xi] 20 CFR §655.734(a)(1)(ii)(B)
[xii] 20 CFR§655.760(a)
[xiii] 20 CFR §655.760(a)(1) through (8)
[xiv] 20 CFR §655.760(c)