Aug 28, 2020
Are you looking to file an H-1B visa petition for a high skilled worker? This is what it takes.
The H-1B specialty occupation non-immigrant classification is reserved for a position that requires completion of a specific university degree (or its equivalent in terms of post–high school education and experience) in order to perform the work. Some obvious examples include Software Engineers, Financial Managers, or Marketing Manager. The steps involved for an employer to obtain approval of this temporary non-immigrant classification for up to six years (three years initially) include the following:
- If the person to be employed obtained his or her university degree from a college or university outside of the United States, an education evaluation equivalency (degree is recognized as equivalent to U.S. degree) must be obtained. Copies of the potential employee’s university diploma and transcript courses, with translations, are required.
- Obtain a prevailing wage determination from the U.S. Department of Labor (DOL) Wage Library or a recognized industry wage source. This wage is required for the labor condition application (LCA). The employer must pay the prevailing wage, or higher.
- Obtain LCA approval from the U.S. Department of Labor, which establishes that the job will satisfy prevailing working and salary conditions; no advertising or test of the U.S. job market is required or most employers, but internal postings at the job site in advance of LCA filing are required.
- Submit H-1B non-immigrant petition, H-1B supplement, and LCA with evidence about the position to be filled to U.S. Citizenship and Immigration Services’ (USCIS) regional service center. The petition must be submitted with evidence that the position is a specialty occupation, as well as evidence of the qualifications of the foreign national. We also need to include evidence that the employer has adequate specialty occupation for the employee for the duration of the petition. This means that the company should have enough work for the employee for the period that they want to employ him.
- Company must pay a training filing fee of $1,500 (reduced to $750 for employers with 25 or fewer employees) for the first two petitions for an employee. All employers must pay a $500 fraud reduction filing fee for the initial petition. The petition filing fee is $460.
- Decision or request for additional information usually issued as per USCIS processing times. [If a premium processing fee of $1,410 is paid, a decision or request of evidence is issued in 15 days.]
- Once the petition has been approved, the approval notice should be sent to the person the company will employ. If outside of the United States, he or she will then apply for an H-1B visa to be stamped into the passport at a U.S. consulate. Then, he or she will be eligible to enter the United States and be admitted to work for the petitioning company. If this person is in the United States in valid nonimmigrant status, USCIS may approve a change of his or her visa status in the United States.
- The employer must employ the person on the start date stated in the approval notice or as soon thereafter as practical if the notice is issued or received after the start date. The approval of the visa petition itself does not mean that your company is required to employ this individual for three years, but it does permit such employment once the individual has been admitted to the United States in H-1B status. If the proposed employee is in valid H-1B status, then she or he will be able to begin work with your company upon issuance of the USCIS receipt for the petition filing fee before the petition has been approved.
- Continuous Stay beyond Six Years: The H-1B Beneficiary may continue to stay in the U.S. if he obtains a permanent resident card (green card) prior to the completion of six years. Alternatively, he/she may continue to stay in the U.S. and request additional extension in H-1B status if he/she has a labor certification application (first step of green card process) or Form I-140 (second step of green card) pending for at least 365 days.
Fling an H-1B is a complex process. This information is not intended to be legal advice. Please contact us if you would like to retain our office to file an application/petition.