Employer Sponsored Work Authorizations

The following information was generously provided by our partner law firm Miller Canfield.

The following will provide you with basic information about the H-1B non-immigrant visa process, as well as provide you with an approximate time frame for each step.

The H-1B non-immigrant classification allows a foreign national to work temporarily in a professional position.  Currently, there is a cap of 65,000 new H-1B visas issued for each fiscal year.  Congress has also created an exemption to the cap for foreign nationals who hold Master’s or higher degrees from U.S. universities or institutes of higher education.  The Act creates 20,000 new visas for these foreign nationals.  (Note that the Fiscal Year 2014 H-1B visa cap has all ready been met, which means that there are currently no new H-1B visa numbers available.) Note this cap does not apply for H-1B extensions or H-1B change of employer petitions.  The cap also would not apply to higher education institutions, to non-profit organizations that are related to or affiliated with a higher education institution, and to certain non-profit research organizations or governmental research organizations.

According to the U.S. Citizenship & Immigration Services (USCIS) standards, the minimum requirement for a position to be considered professional is a U.S. Bachelor’s degree or its equivalent.  Therefore, the position that the foreign national will hold must require a minimum of a Bachelor’s degree.  The individual’s educational and experience background must also correspond to the job offered.

In order to obtain H-1B non-immigrant status, three steps must be completed.

First Step:

A Prevailing Wage Request Form must be prepared with the US Department of Labor (DOL) or obtain the prevailing wage information through an online DOL wage survey.  The prevailing wage is the wage deemed appropriate for a specific occupational class in a certain geographical region.  The DOL determination may be valid for 90 days or up to one year from the date of issuance.  Alternatively, we may use a wage survey to obtain the prevailing wage, if one is available and it meets the DOL regulations.  The prevailing wage must be determined prior to filing Form ETA 9035, Labor Condition Application (LCA) for H-1B Nonimmigrants.  Employers are required to pay 100% of the prevailing wage.  If we are able to utilize the DOL wage survey for the filing, this step of the process can take less than one day.  If we request a prevailing wage from the DOL or an alternative wage source, this step may take from six (6) to eight (8) weeks.

Second Step:

The Labor Condition Application (LCA), which is the second step in the H-1B process, must be completed and filed with the DOL.  When filing the LCA on behalf of an H-1B nonimmigrant, the employer is attesting to the fact that they are paying the H-1B nonimmigrant the greater of the actual wage (the wage paid to other employees who perform the same duties as the H-1B nonimmigrant) and the prevailing wage; there are no adverse effects on the conditions of the workplace; there is no strike, lockout or work stoppage at the place of employment; and, that a notice of the LCA filing has been delivered to the Collective Bargaining Representative, or the notice of the LCA has been posted in two locations at the workplace for ten business days.  Employers are prohibited from displacing U.S. workers with H-1B workers within the period beginning 90 days prior to, or following, a petition for an H-1B worker.  The employer must also maintain the requisite LCA files.  Information about these files will be provided to the employer.  We are able to file the LCA online, and generally receive certifications from the DOL within seven (7) to fourteen (14) days of filing.  If the company has not previously utilized the on-line LCA certification process, it is not unusual to initially receive a denial of the LCA because the DOL can’t verify the Federal Employer ID Number for the company.  Once we provide supplemental evidence of the FEIN to the DOL, the LCA is generally certified.

Third Step:

Once the LCA has been certified by the DOL, your attorney will prepare and file a Petition for Non-immigrant Worker (“H-1B Petition”) and the H-1B Data Collection forms.  Your attorney will also prepare all the appropriate supporting documents for filing with the USCIS.

The H-1B petition is submitted by the employer on behalf of the foreign national with a current filing fee of $325.  It serves as the request by the employer to the USCIS to classify the foreign national as an H-1B nonimmigrant.  The current USCIS processing time for the H-1B petition is approximately 90 to 180 days from the date of receipt at the USCIS.  Please plan on the government processing times for the H-1B classification to be approximately three to six months.  (The processing times vary depending on the workload at the government agencies.)  However, this processing time may be decreased by utilizing the USCIS Premium Processing Service.  This service guarantees review of the petition (either issuing an approval notice or a request for evidence) within 15 calendar days of receipt by USCIS, with an additional fee of $1,225.  (Please note that the prevailing wage must be obtained and the LCA certified by the DOL prior to filing the petition with the USCIS.)

The H-1B Data Collection form is submitted to the USCIS along with the H-1B petition to comply with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee to train the U.S. workforce.  A current fee of $1,500 is charged to employers having more than 25 employees who submit an H-1B petition.  Employers who have 25 employees or less are charged a fee of $750.  The following employers are exempt from the training fee: 1) institutions of higher education and related or affiliated non-profit organizations; 2) non-profit and governmental organizations; 3) any employer who is filing a second or subsequent extension of stay for an H-1B visa holder; 4) primary and secondary educational institutions; and 5) non-profit entities which are engaged in established curriculum-related clinical training of students.  This workforce training fee is assessed for the initial H-1B petition and the first H-1B extension (as long as employment is with the same employer).

Employers seeking to sponsor H-1B workers are also required to pay a “Fraud Prevention and Detection Fee” of $500.  The only exemptions to the employer’s payment of the fraud fee are for those petitions for foreign nationals seeking amendments or extensions of status with the same petitioning employer.

Finally, if the USCIS approves the H-1B petition, the foreign national may apply for an H-1B nonimmigrant visa at a U.S. embassy or consulate abroad.  The time required to obtain the visa varies depending on the interview and visa issuance process of each embassy or consulate.  Please note that the foreign national must obtain the nonimmigrant visa and be admitted into the United States in the H-1B nonimmigrant classification in order to begin his/her employment with a particular companyHowever, if the foreign national is a Canadian citizen, he/she does not need to obtain the visa stamp in his/her passport.  The Canadian citizen would simply present the USCIS approval notice at a U.S. port of entry (land border or airport pre-clearance) to apply for admission to the U.S. as an H-1B nonimmigrant.

If the foreign national is in the U.S. in a valid nonimmigrant status at the time of filing the H-1B petition, the USCIS will either change or amend the nonimmigrant status of the foreign national to H-1B, and then he/she would be authorized to work for the company.  The USCIS also now allows a foreign national to change employers after a non-frivolous H-1B petition is filed with USCIS and the new employer has evidence of that filing.  Therefore, if the foreign national currently holds H-1B nonimmigrant status for a different employer, we must receive the receipt notice from USCIS before he/she is able to terminate his/her current employment to then begin employment with the company.

H-1B status can be granted for an initial period of no more than three (3) years, and then the nonimmigrant may be eligible for a three (3) year extension.  An H-1B nonimmigrant may only hold H-1B status for a maximum of six (6) years.  The exception to this maximum stay would be if the H-1B nonimmigrant is in the green card process and meets the requirements for extending past his/her six year maximum.

Please be advised that we should be notified, in advance, regarding any changes in wages, working conditions, or characteristics of the employment position, or if the job or job title changes.  Likewise, please notify us if there are any changes in the corporate structure or ownership of the company, or if any kind of labor dispute occurs.  These types of changes could affect both the LCA and the H-1B petition, which both refer to a specific job and to a specific foreign national.

This is a general outline of the H-1B process.  Should you have any questions, please contact your immigration attorney.

*Disclaimer:   The information contained on this page is not to be construed as legal advice. Legal questions should be directed to a qualified immigration attorney.